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CILI 

UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


J 


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A 


A    TREATISE 


LAW   OF    EYIDENCE. 


.SIMON    GREENLEAF,   LL.D., 

EMERITUS  PROFESSOK  OF   LAW   IN   HARVARD   UXIVERSITT. 


Quorsum  enim  sacrse  leges  invents  et  sancitse  fuere,  nisi  ut  ex  ipsanim  justitia 
unicuique  jus  suum  tribuatur  1  —  Muscardtjs  ex  Ulpian. 


VOLUME    III. 


EIGHTH  EDITION,    CAREFULLY   REVISED,   -WITH   I^IRGE   ADDITIONS, 


ISAAC  F.   REDFIELD,  LL.D. 


BOSTON: 
LITTLE,    BROWN,    AND    COMPANY. 

MDCCCLXTin. 


T 

IS57 
vol'3 


Entered  according  to  Act  of  Congress,  in  the  year  1860, 

by  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1867, 

by  ^Irs.  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


University  Prrss  :  Welch,  Uioelow.  A  Co., 

CA.MBRID'iE. 


ADVERTISEMENT  TO  THE   SECOND   EDITION. 


In  the  present  edition,  this  volume  has  been  revised  and 
corrected,  as  far  as  the  short  period  which  has  elapsed 
since  the  publication  of  the  first  would  permit,  with  the 
endeavor  of  the  author  to  make  it  more  deserving  of  the 
favor  wdth  which  it  has  been  received.  The  Laws  of  the 
United  States  are  cited  from  the  edition  of  Mr.  Peters, 
continued  by  Mr.  Minot,  and  published  by  Messrs.  Little, 
Brown,  &  Co.,  this  being  now  mostly  in  use,  and  incom- 
parably the  best  which  has  been  published. 

Cambridge,  Mass.,  October,  1853. 


CONTENTS. 


PART    V. 

Op  Evidence  in  Prosecutions  for  Crimes  at  Common  Law. 

SECTION 

General  Principles 1-39 

Accessory •.     .  40 -50 

Arson        51-57 

Assault 58-65 

Barratry 66-67 

Blasphemy 68-70 

Bribery 71-73 

Burglary 74-83 

Cheating 84-88 

Conspiracy 89-99 

Embracery 100-101 

Forgery 102-113 

Homicide 114-149 

Larceny 150-163 

Libel          164-179 

Maintenance        180-183 

Nuisance 184-187 

Perjury 188-202 

Polygamy 203-208 

Rape : 209-215 

Riots,  Routs,  and  Unlawful  Assemblies 216-222 

Robbery '  ....  223-236 

Treason 237-248 


Vlll  CONTENTS. 

PART    VI. 

Of  Evidence  in  Proceedings  in  Equity. 
CHAPTER  I. 

SECTION 

Preliminary  Observations 249-267 

CHAPTER  11. 

Of  the  Sources,  Means,  and  Instruments  of  Evidence     .     .     .  268  -  348 

1.  Things  judicially  taken  notice  of  and  presumed       .     .  269-272 

2.  Admissions 273-294 

3.  Documents       295-311 

4.  Witnesses 312-327 

5.  Inspection  in  aid  of  Proof 328  -  329 

6.  Further  Information  required  by  the  Court    ....  330  -  339 

7.  Evidence  allowed  on  special  order 340-348 

CHAPTER  III. 

Of  the  Exclusion  of  Evidence 349-369 

1.  Suppression  of  Depositions  before  the  hearing    .     .     .  349-352 

2.  Objections  at  the  hearing 353-369 

CHAPTER  IV. 

Of  the  Weight  and  Effect  of  Evidence 370-385 

1.  Admissions 370-374 

2.  Testimony  of  Witnesses 375  -  378 

3.  Affidavits 379  -  385 


PART    VII. 

Op   Evidence   in   Courts   of    Admiralty   and   Maritime    Juris- 
diction. 

CHAPTER  I. 
Preliminary  Observations 386-400 


CONTENTS.  IX 

CHAPTER  II. 

SECTION- 

Of  Evidence  in  Instance  Causes 401  -  402 

1.  General  Rules 402-408 

2.  Competency  of  Witnesses 409-416 

3.  Documents       417-432 

4.  Depositions 433-436 

CHAPTER  III. 

Of  Pleadings  and  Practice  in  Prize  Causes 437  -  443 

CHAPTER  IV. 

Of  Evidence  in  Prize  Causes 444-461 

1.  In  Preparntorio 444-450 

2.  Documents       451-453 

3.  Competency  of  Proof 454-456 

4.  Mode  of  taking  Testimony 457 

5.  Presumptions        458-461 

CHAPTER  V. 

Of  Further  Proof 462-467 


PART    VIII. 

Of  Evidence  in  Courts  Martial. 

CHAPTER  I. 

Preliminary  Observations 468-475 

CHAPTER  11. 

Of  Evidence  in  Courts  Martial 476-501 

1.  General  Rules 476-484 

2.  Attendance  of  Witnesses 485  -  486 

3.  Competency  of  Witnesses 487-489 

4.  Examination  of  Witnesses 490  -  494 

5.  Depositions 495-496 

6.  Public  and  Private  Writings 497-501 


INDEX   TO    CASES    CITED. 


Abergaveny  v.  Powell 
Abraras  v.  Winshup 
Ada  (The) 
Adams  v.  Fisher 

V.  Kelly 

V.  People 

V.  Porter 

V.  Soule 
Addis  V.  Campbell 
Adeline  (The) 
Airs  V.  Billop 
Alam  V.  Jourdan 
Alderman  v.  The  People 
Aldrich  v.  Warren 
Alexander  (The) 
Alexander  Wise  (The) 
Alfred  v.  Watkins 
Aliwal  (The) 
Allen  V.  Mower 
V.  Rand 
V.  State 
V.  State  Bank 


Section 
324,  345 
346 
427 
298 
172 

46 
278 
261 
295 
395,  397,  442 
380 
354 

90 

94 
463 
407 
286 
403 
285 
351 

54 
383 
324,  351 
287 


Amory  v.  Fellows 

Amos  V.  Heatherby 

Anderson  v.  The  Commonwealth 

V.  NeflF 
Andrew  v.  New  York  Bible  Soci- 
ety 
Andrews  v.  Essex  F.  &  M.  Ins.  Co, 

V.  Wall 
Andromeda  (The) 
Ann  and  Mary  (The) 
Anna  (The) 
Ann  Caroline  (The) 
Anna  Green  (The) 


316 


Anne  (The) 
Anne  (The  Lady) 
Anonymous  v.  Brown 
Antelope  (The) 
Apollo  (The) 
Apthorp  V.  Comstock 
Arabella  (The) 


68 
401 
413 
441 

407,  416 

438,445 

407 

442,  445,  447, 

448, 461 
454 

407,415 
351 
395 
436,  446, 448 
337 
438 


Archer  v.  Hudson 

Section 
253 

Arden  v.  Patterson 

181 

Argo  (The) 
Ariadne  (The) 
Armentrout  v.  Morando 

433 
462 
165 

Armiter  v.  Swanton 

317 

Armsby  v.  Wood 
Armstrong  v.  Brown 

V.  The  State 

371 

320,  351 

179 

Arundel  v.  Arunde) 

351 

V.  Pitt 

346 

Ashton  V.  Ashton 

323 

V.  Parker 

318 

Askew  V.  The  Poulterers'  Co. 

341 

Atkins  V.  Palmer 

324 

V.  Wryght                        295,  297 

Attorney-General  v.  Bowman              25 

V.  Carrington        380 

V.  Davison 

341,351 

V.  Lock 

266 

V.  London 

295 

V.  Pierson 

309 

V.  Radloff 

26 

V.  Sitwell 

363 

V.  Thurnall 

346 

Attwood  V.  Barham 

373 

Atwood  V.  Harrison 

276 

Auditor  v.  Johnson 

289 

Aurora  (The) 
Austin  V.  Winston 

395 
326 

Ayres  v.  Campbell 

284 

B. 


Babcock  v.  Smith 

286 

Bachelor  v.  Nelson 

309 

Bailey  v.  Blanchard 

372 

V.  Stiles 

287 

Bailie  v.  Butterfield 

366 

Bailis  V.  Cochran 

351 

Baker  v.  Bradley 

253 

V.  Paine 

363 

Baldwin  v.  Elphinstone 

170 

xu 


INDEX   TO   CASES   CITED. 


Section 

Ball  V.  Townsend  276 

Bamford  v.  Bainford  333 

Banert  v.  Day  351 

Bangs  V.  Little  3G3 
Bank  V.  Farques  310,  331,  34(J 
Bank  of  United  States  v.  Daniel       361 

Barfield  v.  Kelley  310 

Barker  v.  Birch  320 

V.  Dixie  294 

V.  Wyld  288 

Barnes  v.  Stuart  261,  331 

Barnett  v.  Noble  295 

Baron  Holberg  (The)  407 

Barraque  v.  Siter  289 

Barrator's  case  67 

Barron  v.  The  People  46 

BaiTOw  V.  Bhinelander  309 

Barrows  v.  Bell  168 

Barry  v.  Croskey  254  b 

Barstow  v.  Kilvington  363 

Bartlett  v.  Churchill  64 

V.  Gale  286 
V.  Gillard               281,  370,  376 

V.  Wyman  424,  426 

Bass  V.  Steele  304,  419 

Batavier  (The)  407 

Bates  V.  Christ's  College  300 

Baugh  V.  Ramsey  250 

Baxter  v.  Abbott  5 

Bayley  v.  Hill  371 

Beach  v.  Fulton  Bank  345 

V.  Hancock  59 

Beachinall  v.  Beachinall  337 

Bean  v.  Quimby  351 

V.  Simmons  264 

Beasley  v.  Magrath  278 

Beckwith  v.  Butler  290 

V.  Philby  123 

Bedford  v.  Abercorn  363 

Bcebe  v.  Bank  of  New  York  318 

Belden  v.  Davies  274 

Bell  V.  Davidson  320,  351 

V.  Jasper  318 

Bellasis  v.  Benson  373 

Belle  Coquette  (La)  414 

B»;llo  Corrunes  (The)  395 

Bellona  (The)  460 

Bellow?  V.  Stone  363 

Belmore  v.  Anderson  324 

Bennett  v.  Butterworth  257 

V.  Lee  279 

Benson  v.  Chester  314 
V.  Le  Roy              315,  333,  371 

Beresford  v.  Driver  300 

Bemon  (The)  461 

Besant  v.  Richards  323 

Best  V.  Holroyd  1 73 


Section 

Betsey  (The) 

415, 

466 

Betsey  Caines  (The) 

405 

Betsey  &  Rhoda  (The) 

401 

Betts  V.  Badger 

306 

Biddulph  V.  St.  John 

289 

Bigleston  v.  Grubb 

366 

Bignold  V.  Audland 

' 

384 

Bilbie  v.  Luniley 

20 

Biles  V.  Commonwealth 

103 

Billing  V.  Southie 

253 

Bird  V.  Lake 

381 

Bishop  V.  Church 

331 

Bixby  V.  Franklin  Insurance  Co. 

419 

Black  V.  Lamb 

261 

V.  Galsworthy 

300 

Blacker  i'.  Phepoe 

323 

Blake  v.  Barnard 

59 

Bland's  case 

22 

Bland  v.  The  People 

112 

Blenheim  (The) 

407 

Bligh  V.  Berson 

299 

Bloomer  v.  State 

61 

Bloss  V.  Tobey 

53 

Blount  V.  Burrow 

371 

Bloxton  V.  Drewitt 

310 

346 

Bluff  V.  State 

111  a 

Boardman  v.  Jackson 

290,  370 

,  371 

Bogert  V.  Bogert 

302 

,  351 

Boileau  v.  Rutlin 

274 

Boling  V.  Luther 

201 

Boneg  V.  Ilollingsworth 

253 

Bostic  V.  Love 

289 

Bostick  V.  The  State 

11 

Boston  (The)  395,  397,  898,  401, 

403,  412,  414,  416 

Bostwick  V.  Atkins  253 

Bothnea  &  Janstoff  (The)  463,  464, 

465 

Botsford  V.  Burr  365 

Bottomley  v.  United  States  357 

Bourke  v.  Warren  1  74 

Bowman  v.  Rodwell  323 

Boyce  v.  (irundy  362 

Boyd  V.  IM'Lean  365 

Boyle  V.  Bentzon  459 

Bradish  v.  Gee  373 

Bradley  v.  Chase  357 

V.  Root  316,  318 

Brainard  v.  Brain ard  361 

Branch  Bank  v.  Marshall  289 

Breed  v.  Pratt  253 

Brewster  v.  Bours  261 

Brickell  v.  Hulse  274 

Bridge  v.  Bridge  846 

Briggs  V.  Raymond  67 

Brinckerhoffi;.  Brown  288 

Brinley  v.  Whiting  180 


INDEX   TO   CASES   CITED. 


XIU 


Section 

British  Linen  Co.  v.  Drummond  28 

Brittain  v.  Bank  of  London  103 

Britt  V.  The  State  235 

Brogg  V.  The  Commonwealth  213 

Bromage  v.  Prosser  168 

Brooks  V.  Adams  470 

V.  Cannon  326 

V.  Mead  292 

Broom  v.  Beers  258,  259 

Broughton  v.  Jackson  63,  123 

Brown  v.  Babcock  304 

V.  Beauchamp  180 

V.  Brown  289 

V.  Bulkley  253 

V.  Burke  264 

V.  Gordon  64,  65 

V.  Greenly  318,  326 

V.  Lull  401,  423 

V.  Mallett  187 

V.  Perkins  41 

V.  Selwin  366 

V.  Thornton  28 

Bulkley  v.  Van  Wyck  287 

V.  Wilford  253 

Bullock  V.  Koon  196 

Burrall  v.  Eames  322 

Burton  v.  Neville  299 

Bush  V.  Livingston  290 

Butler  V.  Elliott  318 

Butterworth  v.  Bailey  291 

V.  Brown  318 

V.  Robinson  329 

Byrne  v.  Frere  346 


c. 


Cabell  V.  Megginson  384 

Callaghan  v.  Rochfort         348,  350,  369 

Callow  V.  Mince  336 

Calverley  v.  Williams  361 

Camp  V.  The  State  314 

Campbell  v.  Hadley  387 

V.  Jones  182 

V.  Morrison  385 

V.  Sfougall  352 

V.  Sheldon  384 

V.  The  People  122 

Carew  v.  Johnston  356 

Carl  Walter  (The)  447 

Carlos  V.  Brock  348 

Carman  v.  Watson  288 

Carnan  v.  Bowles  329 

Carolina  (The)  466 

Carolus  (The)  407 

Carpenter  v.  Providence  Ins.  Co.      289 

V.  The  State  190 


Section 
Carpmael  v.  Powis  323 
Carrington  v.  Carnock  343 
Carter  v.  Palman  253 
V.  The  Commonwealth  25 
Cartwright  v.  Green  159 
Castel  V.  Bainbridge  147 
Catherine  of  Dover  (The)  414,  454 
Cazenove  v.  Vaughan  351 
Cecil  V.  Salisbury  279 
Celt  (The)  414 
Chaffin  V.  Chaffin  285 
V.  Kimball  287 
Chalnier  v.  Bradley  340 
Chamberlain  v.  Thompson  363 
Champion  v.  Rigby  253 
Chandler  v.  Brainard  351 
Chapman  v.  The  Commonwealth  51 
Charitable  Corporation  v.  Sut- 
ton 350, 351 
Charlter  v.  Barrett  15 
Charnley  v.  Dunsany  341 
Chase  v.  Manhardt  283 
Cheadle  v.  Buell  162 
Cheriott  v.  Foussat  420 
Chester  (The)  407 
Chesterfield  v.  Janssen  254 
Childrens  v.  Saxby  344 
Chimelli  v.  Chauvet  381 
Chipman  v.  Thompson  274 
Cholmondeley  v.  Clinton  346 
Choteau  v.  Thompson  317 
City  of  London  (The)  407 
Ch/istian  v.  Taylor  303 
V.  Wren  342 
Chubb  V.  Westley  168,  174 
Church  V.  Shelton  395 
Clark  V.  Grant  363 
V.  Henry  364 
V.  Jennings  310,  345 
V.  Mullick  28 
V.  Periam  356 
V.  Society  337 
t'.  Van  Reimsdyck  287,  289,  318 
Clarke  v.  White  287 
Clary  v.  Grimes  326 
Clason  V.  Morris  284 
Clayton  v.  Meadows  261 
Clement  (The)  403,  407,  416 
Clifford  V.  Brandon  219,  221 
Clinan  v.  Cooke  363 
Cloutman  v.  Tunison  429 
Coale  V.  Chase  380 
Cochran  v.  Cowper  276 
Cockcroft  V.  Smith  64 
Cockerel  v.  Cholmeley  345 
Codrington  v.  Shelburne  278 
Coffin  V.  Jenkins   394,  395, 397, 398, 429 


XIV 


INDEX  TO   CASES  CITED. 


Section 

Coffin  V.  Jones 

351 

Cognac  (The) 

401 

Coke  V.  Fountain 

841 

Coker  v.  Farewell 

843 

Colby  V.  Reynolds 

165 

Colcott  V.  Maher 

281 

Cole  V.  Gray 

278 

V.  Hadley 

274 

Coleman  v.  Lyne 

276 

Coley  V.  Coley 

346 

Collins  V.  Cave 

254  6 

V.  The  Commonwealth             94 

Colson  V.  Bonzey 

419 

Colt  V.  Howard 

376 

Columbine  (The) 

404 

Columbus  Gas,  &c.  Co.  v.  Freeland    184 

Comb  V.  Adams 

108 

V.  Pitt 

73 

Commonwealth  v.  Adams 

108, 151 

V.  Andrews 

152 

V.  Athens 

179 

V.  Ayer        69,  102,  103 

V.  Bailey 

108 

V.  Baldwin 

103  a 

V.  Barney 

51,  52,  79 

V.  Beaman 

163 

V.  Berry 

217 

V.  Betton 

55 

V.  Bigelow 

111,  111  a 

V.  Blanding 

173 

V.  Bonner 

168 

V.  Boon 

184,  185 

V.  Bowden 

'  37 

V.  Bowen 

40,  41,  50 

V.  Boynton 

89,  102 

V.  Brady 

200 

V.  Brown 

79,  162 

V.  Bubser 

36 

V.  Buckingh; 

m          1 70 

V.  Buzzell 

52 

V.  Call 

12,  86 

V.  Carey 

106,123 

V.  Carlisle 

89 

V.  Cliace 

163 

V.  Chandler 

103 

V.  Chapin 

187 

V.  Chapman 

119,  120, 

138,  165 

V.  Chevalier 

75 

V.  Clapp 

165 

V.  Clark 

65 

V.  ClilTord 

22,  223, 

224,  229 

V.  Clue 

37 

V.  Cook 

37 

V.  Cooley 

65 

V.  Cooper 

86 

Section 

Commonwealth  v.  Cornish  194,  200 

V.  Creed  58 
V.  Crowninshield         90 

V.  CuUins  152 

V.  Cunningham  35 

V.  Davis  66,  67 

V.  Dedham  22 

V.  Dewitt  152 

V.  Douglass  188 
V.  Drew       86,  123,  146 

V.  Easeland  96 
V.  Eastman     15,  89,  90 

V.  Eddy  24 

V.  Elwell  12 
V.  Erie  &  Northeast 

K  R.  Co.  184,  187 

V.  Eyre  61 

V.  Faris  185 

V.  Flynn  10 

V.  Ford  65 

V.  Fogerty  209 

V.  Fox  139,  141 

V.  Gallagher  186 

V.  Giles  66 

V.  Goddard  35 

V.  Green       4,  139,  147, 
215 

V.  Hardy  25 

V.  Harley  17,  96 

V.  Harmon  16  7 

V.  Harney  57 

V.  Harrington  2 
V.  Hawkins     6,  14,  144 

V.  Haynes  184,  185 

V.  Hay  ward  104 

V.  Hearsey  84 

V.  Hill  9,  110 

V.  Hilliard  122,  149 

V.  Hopkins  186,  187 

V.  Horton  15 

V.  Houghton  167 

V.  Hoxey  49 

V.  Hudson  36 

V.  Humphries  229 
V.  Hunt       89,  90,  90  a 

V.  James  162 

V.  Johns  193 

V.  Judd  89,  90 

V.  Kellogg  17,  96 

V.  Kingsbury  90 

V.  Kinney  38 

V.  Knapp  243 

V.  Knight  195 

V.  La<i(l  103 

V.  Lakeman  65 

V.  Lamb  51 

V.  Lanicran  215 


INDEX   TO   CASES   CITED. 


XV 


Section 

Commonwealth  v.  Lewis  22 

V.  Loud  35 

V.  Mann  186 

V.  Marsh  98 

V.  Martin  15 

V.  McAtee  43 

V.  McDonald  2 

V.  McKie  24 

r.  MTike  121,  139 

V.  Meade  149 

u.  Merrill  83 

V.  Mosler  5 

u.  Murphy      7,  58,  120, 
209 
V.  Myers  32 

u.  Neal  7 

r.  New  Bedford 

Bridge  Co.  9  a 

V.  Newell  74 

V.  Nichols  1 70 

V.  Olds  37 

V.  Parker  195,  198 

V.  Peck  106 

V.  Percival  111 

V.  Peters  35 

V.  Phillips  10 

V.  Pierpont  89 

V.  Pollard  195,  198 

V.  Porter  1 79 

V.  Posey  51 

V.  Prison-keeper        148 
V.  Purchase  37,  38 

V.  Rand  152,  153 

V.  Randall  63 

V.  Ray  43,    103,    103  a, 
104 
V.  Reed  187 

V.  Ridgeway  93 

V.  Riggs  153,  161 

V.  Robinson  98 

V.  Roby  35,  36 

V.  Rogers  6 

V.  Runnels  219 

V.  Sankey  103 

V.  Searle  103,  110 

V.  Shattuck  49 

V.  Shaw  17 

V.  Shea  36 

V.  Shedd      89,  90,  90  a 
V.  Simmons  152 

17.  Smith  90  a,  106,  113, 
184,  185 
V.  Snelling  66,  168,  229 
V.  Springfield  143 

V.  Squire  52 

V.  Stearns  15, 111,111a 
V.  Stephenson  76 


Section 
Commonwealth  v.  Stevens  108 

V.  Stevenson  103  a 

V.  Stewart  186 

V.  Stone  111,  111  a 

V.  Swift  Run  Gap 

Turnpike   Co.  9  a 

V.  Taylor  108 

V.  Thomas  210 

V.  Thompson  129 

V.  Thurlow  34 

V.  Tibbetts  89,  90 

V.  Tolliver  58 

V.  Trimmer      7,  76,  161 

V.  Turner  Ilia 

V.  Turnpike  Co.  9  a 

V.  Uprichard  152 

V.  Upton  187 

V.  "Van  Schaack  55 

V.  Varney  167 

V.  Wade  10,  51,  57 

V.  Ward  89,  90 

V.  Warden  192 

V.  Warren    84,   86,  89, 

90,  93 

V.Webster  14,  25, 

29,  119,  130 

V.  White  190 

V.  Whitehead  2 

V.  Whitney  106 

V.  Wilde  160 

V.  Wilgus  86,  88 

V.  Willard  43 

V.  Williams  75 

V.  Wilson       5,  108,  122 

V.  Wood  98 

V.  Woodbury  111 

V.  Wright  108,  167 

Comstock  V.  Apthorp  303,  328 

Conn  V.  Penn  319 

Consequa  v.  Fanning  309,  310 

Contee  v.  Dawson  355 

Converse  v.  Hartley  261 

Conway  v.  Regina  37 

Cook  V.  Beal  64 

V.  Field  46 

V.  Fountain  365 

V.  Hughes  168 

V.  Travis  183 

U.Ward  170 

Cooke  V.  Curtis  496 

Cookes  V.  Cookes  372 

Coolidge  V.  New  York  Insurance 

Company  419 

Cooper  V.  Greeley  164 

Coote  V.  Boyd  366 

Cope  V.  Parry  318,  326 

Copeland  v.  Crane  287,  289,  333 


XVI 


INDEX   TO   CASES   CITED. 


Section 

Section 

Copeland  v.  Stanton 

351 

De  Reimer  v.  Cantillon 

363 

Corey  v.  Gerteken 

276 

De  Tastet  v.  Bordenave 

338 

Cornelius  v.  The  CommoE 

wealth 

122 

Devoe  v.  The  Commonwealth 

80 

Cornwell  v.  The  State 

6, 

148 

Dewitt  V.  Yates 

367 

Cotton  V.  Luttrell 

318 

DeWolf  v.  Johnson 

315 

Courtenay  v.  Hoskins 

336, 

351 

Dexter  v.  Spear 

165 

Cowan  V.  Price 

355 

Diana  (The)                         438, 

442, 

455 

Covvslade  v.  Cornish 

333, 

336 

Dias  V.  Merle  * 

301 

Cox  V.  Allin<]jham 

306, 

346 

Dickenson  v.  Watson 

62 

V.  Worthington 

323, 

350 

Dierden  in  re 

309 

Crew  V.  Vernon 

190 

Dishon  V.  Smith 

73 

Crispell  V.  Dubois 

253 

Dives  V.  Scott 

372 

Crocker  v.  Franklin  Co. 

320 

Dixon  V.  Parker 

318 

V.  Lewis 

357 

Dodge  v..  Griswold 

264 

Crook  V.  Dowling 

192 

V.  Israel 

308 

351 

Cropper  v.  Burtons 

276 

Doe  V.  Morris 

107 

Cross  V.  Peters 

84 

V.  Sy  bourn 

274 

Crosse  r.  Bedingfield 

283 

Dole  V.  Fellows 

304 

Crusader  (The) 

407 

Domville  v.  Solly 

373 

Cummiug  v.  Waggoner 

335 

Donnally's  case 

223 

Curling  v.  Townsend 

286 

Donnelly  v.  State 

144 

Curre  v.  Bowyer 

346,  347 

352 

Doolittle  V.  Gookin 

288 

Cushman  v.  Ryan 

404, 

413 

Dordrecht  (The) 

460 

Cutter  V.  Rae 

387 

Dougan  v.  Blocher 

261 

Cypress  (The) 

401 

Douglass  V.  Eyre 

V.  Holbert 

, 

428 
318 

V.  The  State 

187 

220 

D. 

Dover  (The  Countess  of) 

436 

Dale  V.  M'Evers 

288 

Drake  v.  Symes 

301  a 

V.  Roosevelt 

309 

341 

Drakefleld  v.  Wilks 

365 

Dalston  v.  Coatsworth 

359 

Drennan  v.  People 

123 

Dame  v.  Baldwin 

162 

Draper  v.  Manchester,  Sheffield, 

8c 

Dame  Catherine  (The) 

438 

Lincolnshire  Railway  Co. 

307 

Dana  v.  Nelson 

309 

Drie  Gebroeders  (The) 

454 

Danforth  v.  Streeter 

180 

183 

Drum  V.  Simpson 

316 

Dangerfield  v.  Claiborne 

351 

Drury  v.  Connor 

287 

Daniel  r.  Mitchell 

284 

289 

Duffield  V.  Smith 

470 

Daniell  r.  Daniell 

318 

Dugan  V.  Gittings 

287 

Darling  v.  Staniford 

347 

Dugdale  v.  Regina 

2 

Darston  v.  Lord  Oxford 

371 

Dukes  V.  State 

149 

Darwin  v.  Clarke 

299 

Duncan  v.  The  Commonwealth 

36 

Davers  v.  Davers 

311 

Dunham  i'.  Riley 

304 

David  Pratt  (The) 

398,  399, 

410, 

V.  Yates                285 

287 

,  289 

413,  424 

,427 

Dunkin's  case 

468 

,480 

Davidson  v.  Greer 

360 

Dunn  V.  Whitney 

372 

Davies  v.  Davies 

282 

Dnnnaway  v.  The  State 

185 

V.  Otty 

351 

Dupont  V.  Vance 

403 

Davis  V.  Allen 

351 

Dwight  V.  Pomeroy 

250 

,  363 

V.  Child 

401 

Dwyer  v.  Collins 

107 

V.  Gray 

381 

Dyer  v.  Dyer 

365 

V.  Spurling 

281 

V.  The  Commonwealth 

12 

Davison  v.  Duncan 

168 

Dearie  v.  Southwell 

448 

De  Lovio  V.  Boit 

387 

E. 

Dent  V.  Bennett 

253 

Fade  v.  Lingood 

310 

,341 

Denton  v.  Jackson 

347 

Eager  v.  Wiswall 

296 

Derecourt  v.  Corbishley 

123 

!  Earle  v.  Pickin 

323 

INDEX   TO   CASES   CITED. 


xvn 


Section 

Eastburn  v.  Kirk  385 

Eastern  C.  Railway  v.  Broom  9  a 

Eastern  State  (The)  407 
East  India  Company  v.  Donald          354 

Eastwood  V.  The  People  6 

Ecktord  t%  De  Kay  314,317 

Edge  V.  The  Commonwealth  9  a 

Edgworth  V.  Smith  309 

Edmonds  v.  Foley  296 

Edwards  v.  Goodwin  333 

V.  Myrick  253 

Eenrom  (The)  408,  466 

Eggleston  v.  Speke  278 
Elder  V.  Elder                           "^          363 

Elderton  v.  Lack  337 

Eleanor  (The)  428 

Eliza  (The)  423 

Eliza  and  Katy  (The)  445 

Elizabeth  (The)  415,  427 

Elizabeth  and  Jane  (The)  .       412 

EUiee  v.  Roupell  325 

Elliott  V.  Brown  64 

Ellis  V.  Deane                      310,  315,  316 

V.  Sinclair  383 

Ellison  V.  Bellona  401 
Elsmore  v.  Hundred  of  St.  BriaveUs    52 


Elston  V.  Wood 

278 

El  Telegrafo 

Embden  (The) 

Emma  Johnson,  The  Schooner 

464 
461 
404 

Endraught  (The) 
Enterprise  (The) 
Ernst  Merck  (The)                     442 

461 
416 
459 

Ei-skiue  v.  The  Commonwealth 

52 

Etches  V.  Lance 

385 

Etheridge  v.  Cromwell 

183 

Euphrates  (The) 

Eurupa  (The) 

Evans  v.  Bicknell                        250 

466 

407 

,  323 

V.  Cogan 

275 

V.  Ellis 

253 

V.  Finch 

81 

Everard  v.  Warren 

335 

Ewer  V.  Ambrose 

192 

Exeter  v.  Exeter 

363 

Experiment  (The) 

448 

F. 

Falcon  (The) 
Farley  v.  Bryant 

455 
318 

Farnam  v.  Brooks                        253 

,  289 

Farnsworth  v.  Storrs 

168 

Farquharson  v.  Balfour 
Farrall  v.  Davenport 

296 
310 

Farrer  v.  Hutchinson 

299 

V.  The  State  of  Ohio 

15 

Section 

Feaver  v.  Williams  299 

Fenton  v.  Hughes  369 

Fenwick  v.  Bell  416 

V.  Read  296 

Fenwicke  v.  Gib  332 

Fereday  v.  Wightwick  317 

Ferrers  v.  Shirley  274 

Ferry  v.  Fisher  346 
Field  V.  Holland                          283,  284 

V.  Jackson  385 

V.  SchiefFelin  302 

Finnerty  v.  Tipper  168 

Firkins  v.  Lowe  299 

Fishell  I'.  Bell  361 

Fisher  v.  Porch  261 

Fishmongers'  Co.  v.  Robinson  274 
Fitzgerald  v.  O'Flaherty    275,  295,  323 

Flag  V.  Mann  289 
Fletcher  v.  Glegg  315,  338 
Flora  (La)                            442,  460,  466 

Flower  y.  Younger  419 

Flowerdav  v.  Collet  351 

Flying  Fish  (The)  466 

Follett  V.  Weed  304 

Ford  V.  De  Pontes  300 

Forde  v.  Skinner  69 

Forsigheid  (The)  460 

Forsyth  v.  Clark  284 

Fortitudo  (The)  401 
Fortuna  (The)            441,  445,  459,  466 

Fowler  v.  Fowler  366 

Foy  V.  Foy  366 

Francis's  case  482 

Franklin  v.  Greene  339 

Franklyn  v.  Colquhoun  318 

V.  Greene  262 

Fream  v.  Dickinson  326 

Frederick  (The  Prince)  424 
Freeman  v.  Fairlie                       289,  296 

V.  Tatham  281 

V.  The  People  5 

Friendschaft  (The)  464 

Frost  V.  Paine  182 

Fry  V.  Wood  343 

Fryrear  v.  Lawrence  287 

Fullager  v.  Clark  254 

Fuller  V.  Jackson  415 

Fulton  Bank  v.  Beach  286 
V.  Sharon  Canal 

Company  316 


G. 

Gafney  v.  Reeves  310 

Gage  V.  Shelton  52 

Gahagan  v.  The  People  204 


xvin 


INDEX   TO    CASES   CITED. 


Gaines  v.  Relf 

V.  Travis 
Gainsford  v.  Grammar 
Galen  (The)    . 
Gallagher  v.  Roberts 
Gammel  v.  Skinner 
Gardiner  v.  Rowe 
Gardner  r.  Moult 
Garrow  v.  Carpenter 
Garvey  v.  Hibbert 


Section  1 
257 
401 
292 
454 
373 
399,413 
338 
274 
287 
383 
Gass  V.  Stinson   320,  336,  348,  350,  351 
Gassett  ?;.  Gilbert  168 

Gav  V.  State  151 

Gazelle  (The)  407 

Genesee  Chief  (The)  v.  Fitzhugh     387 
George  (The)  404,  449,  465,  46 7 

Georgiana  (The)  436 

Geyger  v.  Geyger  304 

Gibbons  v.  Pepper  62 

Gibbs's  case  468",  480 

Gibbs  V.  Cook  326 

V.  Dewey  100 

Gibson  v.  Hunter  35  7 

V.  Jeyes  253 

1-.  Tilton  383 

Giles  V.  The  State  29 

Gillespie  v.  Moon  363 

Gilmore  v.  Patterson  544 

Gilpins  V.  Consequa  320,  324,  351 

Girolino  (The)  407 

Glass  I'.  The  Betsey  •  387 

Gloucester  Ins.  Co.  v.  Younger  387 

Glynn  r.  Bank  of  England  250 

Goddard  v.  Smith  66 

Goldie  V.  Shuttleworth  293 

Goodman  t'.  vSayers  357 

Goodnow  V.  Tappan  178 

Goodrich  v.  Davis  1 74 

Gould  V.  O'Keefe  316 

Gordon  v.  Gordon  343 

Gosse  V.  Tracy  326 

Gould  V.  Williamson  289 

Gower  V.  No  well  182 

Gozzet  V.  Lane  253 

Graff  BernstoflF  (The)  466 

Graffins  r.  The  Commonwealth         185 
Graham  v.  Iloskins  415 

(irant  v.  Gould  468 

)'.  Navlor  457 

V.  Poillon  387 

Graves  v.  Budgel  309,  310 

Gray  v.  Murray  345 

i\  Russell  329 

Green  i'.  Goddard  65 

V.  Hart  290 

V.  State  14 

Grcenaway  v.  Adams  336 


Greenwood  v.  Parsons 
Gregory  v.  Gleed 
Gresley  v.  Mousley 
Grey  v.  Sharpe 
Giiells  V.  Gansell 
Griffin  V.  State 
Griffing  v.  Gibb 
Grisham  v.  The  State 
Grogan's  case 
Grotius  (The) 
Guenther  v.  People 
Gyles  V.  Wilcox 


H. 


324, 


Section 
345 
181 

253,  298 
367 

346, 347 
163 
187 
184 
468 
454 
36,  37 
329 


Haabet  (The)  445 

Hacker  v.  Young  419 

Haight  V.  Mon-is  Aqueduct        289,  382 

Haile  v.  The  State  6 

Hale  y* Washington  Ins.  Co.  387 

Hales  V.  Pomfret  275 

Haley  v.  McPherson  191 

Hallr.  Doran  261 

V.  Hill  366 

V.  IVIaltby  323 

V.  Wood  287 

Hallock  V.  Smith  345 

Hamersley  v.  Lambert  345 

Hamilton's  case  162 

Hammond  v. 352 

Hancock  v.  Carlton  288 

Handerside  v.  Brown  275 

Handy  v.  Stokes  72 

V.  Wheaton  823 

Hanly  v.  Sprague  314 

Hanna  v.  Renfro  183 

Hannen  v.  Edes  63,  64 

Hanslip  v.  Kitton  297 

Hanson  v.  Gardner  386 

Hard  castle  v.  Shafto  315 

Harden  v.  Gordon  423,  427 

Harding  v.  Greening  170 

V.  Handy  333 

Ilardman  r.  Ellames  298,  299 

Hardy  v.  The  State  179 

Harlam  v.  Wingate  287 

Harmony  (Tlie)  461 

Harriet  (The)  407 

Harrington  v.  Harrington  341 

Harris  v.  Harris  278 

V.  Ingledew  310 

Harrison's  case  Ilia 

Harrison  (The)  443 

V.  Hodgson  65 
Hart  I'.  Ten  Eyck  290,  333,  370 
Hartmann  v.  The  Commonwealth  84,  89 

Harvey  (The)  424 


INDEX   TO   CASES   CITED. 


XIX 


Harvey  v.  Alexander 
Harwood  v.  Wallis 
Haskill  V.  The  Commonwealth 
Haskins  v.  People 
Hassenfrats  v.  Kelly 
Hatch  V.  Hatch 
Haven  v.  Foster 
Haverfield  v.  Pyman 
Hawes  v.  Bamford 
Hawing  v.  Hawkins 
V.  Luscombe 
Hawley  v.  Donnelly 
Haws  V.  Hand 
Hayes  v.  The  People 
Hayward's  case 
Hayward  v.  Carroll 
Hazard  (The) 

Hazen  v.  The  Commonwealth 
Healey  v.  Jagger 
Heart  of  Oak  (The) 
Helms  V.  Franciscus 
Hendrick  and  Alida  (The) 
Hendrick  and  Maria  (The) 
Henry  v.  Davis 
Henry  Ewbank  (The) 
Henslow  v.  Fawcett 
Hepworth  v.  Heslop 
Hercules  (The) 

Hernandez  v.  Carnobeli 

Hess  V.  The  State 

Hewitt  V.  Crane 

Higbee  v.  Baron 

Higbie  V.  Hopkins 

Higgins  V.  Connor 
V.  Mills 

Higginson  v.  Clowes 

Hildreth  v.  Schillinger 

Hillman  v.  Wright 

Hill  V.  Binney 
V.  Muller 
V.  Thompson 

Hillhouse  V.  Dunning 

Hinch  V.  The  State 

Hinde  v.  Vattier 

Hindson  v.  Weatherell 

Hine  v.  Dodd  . 

Hiram  (The) 

Hitchcock  V.  Skinner 

H.  M.  Wright  (The) 

Hoare  v.  Johnson 

Hobart  (The) 

Hockenbury  v.  Carlisle 

Hodges  V.  Mullikin 
V.  The  State 

Hodgson's  case 

Hodson  y.  Warrington 

VOL.    ill.  b 


Section  i 
315 
363  [ 
24  i 
152,  161  j 
183 
253 
20 
298 
380 
318 
278 
380 
326 
211 
185 
315 
466 
90 
346 
401 
314 
453 
445 
364 
412 
72 
338 
430 
63 
15   111 
253 
371 
289 
276 
309 
363 
261 
360 
282,  374 
286 
385 
165 
201 
326 
253 
289 
401 
326 
407 
335 
436 
253 
318 
169 
22 
311 


Hoffman  v.  Smith 
Hoo-an  V.  Delaware  Ins.  Co. 
Hoghton  (The) 
Hoicomb  V.  New  Hope 
Holden  v.  Hearn 
Hollister  v.  Barkley 
Holloway  v.  Lowe 
Holman  v.  Bank  of  Norfolk 

V.  Walden 
Holmes  v.  Commonwealth 
Holtscomb  V.  Rivers 
Home  V.  Bentinck 
Hood  V.  Pimm 
Hooker  v.  State 
Hooley  v.  Hatton 
Hope  (The) 
Hope  V.  Evans 

V.  The  Commonwealth 
Hopkins  v.  Stump 

V.  The  Commonwealth 
Hopkinton  v.  Hopkinton 
Hoppet  (The) 
Hough  V.  Williams 
Hougham  v.  Sandys 
Houghton  V.  Houghton 
House  V.  Metcalf 
Houseman  v.  The  N.  Carolina  395,  397 
Howard  v.  Bell 

V.  Braithwaite 

V.  Robinson 
Howell  V.  Ransom 
Hoye  V.  Bush 
Hozey  v.  Buchanan 
Huber  v.  Stainer 
Hudson  (The) 
Hughes  V.  Blake 

V.  Garner 

V.  Phelps 

V.  Ryan 
Huguenin  v.  Baseley 
Humphreys  v.  Pensam 
Hunt  V.  Daniel 

V.  Rousmanier 


Section 
261 
363 
427 
261 

294, 332 

333,  371 

180 

318 

22 

46 

372 

469,498 

346 

51 

366 

407,  415 
289 
153 
343 
110 
318 
396 
336 
317 
253 
187 


219 
338 
298 
253 
123 
419 
28 
413 
289 
289 
309 
380 
253 
341 
355 
287,  289,  361 


V.  The  Commonwealth  159 

Hunter  (The)  408,  453 

V.  The  Commonwealth  76 


V.  Wallace 
Huntress  (The) 
Hurd  V.  Partington 
Hurst  V.  Beach 
Hutcheon  v.  Mannington 
Hutchinson  v.  Sinclair 
Hutson  V.  Jordan 
Hyde  v.  Whitfield 
Hylton  V.  Brown 

V.  Hylton 


289 
387,456 
315 
366 
383 
287 
395,  398,413 
385 
304 
253 


XX 


INDEX   TO   CASES   CITED. 


Ida  (The) 
Imason  v.  Cope 
Independence  (The) 
Indian  Chief  (The) 
Iii^iilby  V.  Shafto 
Ingram  v.  Mitchell 
Inskoe  v.  Proctor 
Irnham  v.  Child 
Ii-on  Duke  (The) 
Isaac  Newton  (The) 
Isabella  (The) 
Itinerant  (The) 
Ives  V.  Medcalfe- 


Jaekling  v.  Edmonds 
Jackson  v.  Cator 

V.  Demont 
V.  Hart 
V.  Hill 

V.  Humphrey 
V.  Kingsley 
V.  Petrie 
V.  State 

V.  Steamboat  Mag 
V.  White 
Jalabert  v.  Chandos 
James  v.  Johnson 
Jay  V.  Almy 
Je('ker  v.  Montgomery 
Jenkins  v.  Bisbee 

V.  Pye 
Jcnks  i\  Eldredge 

V.  Lewis 
Jennings  v.  Carson 
Jenny  (The) 
Jerome  v.  Jerome 
Jobson  V.  Leighton 
John  Brotherick  (The) 
Johnson  v.  Dalton 
Vi  Hudson 
V.  Johnson 
V.  Rankin 
V.  State 
Jones  V.  Beach 
V.  Lewis 
V.  Person 
V.  Pitcher 
V.  Stevens 
V.  The  Phoenix 
V.  Tliomas 
V.  Williams 
Jonge  Margaretha  (The) 
Jordan  v.  Jordan 


nolia 


Section 

466 

65 
413 
461 
298 

346,  347 
363 

360,  364 
407 
416 
424 
407 
275 


297 
385 
183 
289 
183 
201 
30G 
385 
36 
387 
427 
363 
3G4 
413 
441 
326 
253 
323,  336,  364 
401 
387 
466 
364 
381 
407 
424 
167 
253 
326 
59 
364 
303 
276 
419 
168 
430 
253 
326 
447 
264 


Section 
Joynes  v.  Statham  361,  364 

Juffrouw  Anna  (The)  408,  466 

Jiihana  (The)  423 

Juno  (The)  451 

Jupiter  (The)  407,  431 


Kane  v.  The  People  9  a 

Keely  v.  State  159 

Keira  v.  Taylor  316 

Keisselbrack  v.  Livingston  363 

Keith  V.  Lothrop  106 

Kellum  V.  Emerson  401 

KeUy  V.  Eckford  303 

Kennedy  v.  Baylor  288 

V.  Kennedy  375 

Kenny  v.  Dalton  347 

Kent  V.  Taneyhill  278 

Keppel's  case  478 

Ketland  v.  Bissett  320 

Ketland  (The)  v.  Lebering  426 

Key  V.  Vattier  180 

Kilbee  v.  Sneyd  274 

Kimball  V.  Cook  351 

Kincaird  v.  Howe              •  22 

King  V.  Cloud  316 

V.  Hamilton  361 

V.  Reglnam  90 
King  of  the  Two  Sicilies  v. 

Wilcox  9  a 
Kingston  v.  Tappen                     824,  346 

Kinnard  v.  Saltoun  383 

Kirk  V.  Hodgson  318 
V.  Kirk                                  345,  346 

Kirkman  v.  Vanlier  276 

Knagg  V.  Goldsmith  429 

Knibb  v.  Dixon  355 
Knickerbacker  v.  Harris             287,  289 

Knight  V.  Freeport  100 

Kynaston  v.  East  India  Co.  328 
Kynoch  v.  S.  C.  Ives                   397,  401 


Lady  Anne  (The)  403 

Lafone  v.  Falkland  Island  Company 

300 
Lagget  V.  Postley  278 

Laight  V.  Morgan  '  284 

Laing  V.  Raine  292 

Lake  v.  Skinner  310 

Lamb  v.  Parkman  897,  421 

Lambden  v.  The  State  201 

Lambert  v.  Maris  383 


INDEX   TO   CASES   CITED. 


XXI 


Section 

i^ambert  v.  The  People  90 

Lane  v.  Shears  183 

V.  State  111  « 

Lano-tlon  v.  Goddard  355 

V.  Keith  363 

L^ngley  v.  Fisher  323 

Lann;ston  v.  Boylston  384 

L  insday  v.  Lynch  289 

Lnnsing  v.  Russell  261 

Lapreese  v.  Falls  261 

Laragoity  v.  Attorney-General  384 

Lathrop  V.  Amherst  181 

Latimer  v.  Neale  298 

Lauderdale  (Countess  of)  459 

Lauiiouk  V.  Brown  123 

Lawrence  v.  Lawrence  287 

V.  Maule  326 

L.  B.  Goldsmith  (The)  395 

Le  Cheminant  v.  Pearson  419 

Ledwith  V.  Catchpole  123 

Lee  V.  Gansell  81 

V.  Huson  15 

V.  Paine  163 

V.  Risdon  366 

Leeds  v.  Marine  Insurance  Co.  288 

Legard  v.  Sheffield  278 

Lench  v.  Lench  323 

Lennox  v.  Mannings  351 

Lenox  v:  Prout  289 

V.  Winissimet  Co.  407 

Leonard  v.  Huntington  419 

Leopard  (The)  407 

Leroy  v.  Veeder  384 

Leuty  V.  Hillas  360 

Levi  V.  Jakeways  286 

V.  Levi  90 

Levinfj  v.  Caneley  280 

Leviston  v.  French  326 

Lewes  v.  Morgan  316 

Lewis  V.  Brooks  253 

V.  Owen  326 

Ligo  (The)  404 

Lin  V.  Jaquays  286 

Lincoln  v.  Wright  352 

Lindo  V.  Rodney  443 
Lingan  v.  Henderson                  314,  316 

Lingen  v.  Simpson  298 

Linu  V.  Barkey  360 

Litchfield  V.  Bond  278 

Littlefield  v.  Clark  275 
Lively  (The)                                395,  442 

Liverpool  Packet  (The)  408 

Livingston's  case  36 

Livingston  v.  Livingston  384 

V.  Story  257 

V.  Tompkins  278 

Llewellyn  v.  Badeley  300 


Section 

Locke  V.  Foote  279 

London  Packet  (The)  395,  438,  447 
448,  457,  463,  464 

Long  V.  White  289 

Lonsado  v.  Templer  291 

Lonsdale  v.  Brown  320 

Lopez  V.  Deacon  295 

Lord  V.  Ferguson  419 

Lord  Hobart  (The)  436 

Lotty  (The)  413 

Love  V.  Braxton  289 
Lovett  t'.  Steam  Mill  Company         289 

Lurabrozo  v.  White  380 

Luminary  (The)  404 

Lunn  V.  Johnson  276 

Lunsford  v.  Bostion  332 

Lupton  0.  White  344 

Lyddon  v.  Moss  253 

Lydiahead  (The)  463 

Lyman  v.  Little  290 


M. 

Mackenzie  v.  Pooley 
Mackworth  v.  Penrose 
Macomber  v.  Thompson 
Madder  v.  Reed 
Madonna  DTdra  (The) 
Magee  v.  Moss 
Magnus  (The) 
Magoun  (The) 
Magrath  v.  Veitch 
Mahala  v.  The  State 
Malier  v.  People 
Mahoney  v.  Lazier 
Mahur  V.  Hobbs 
Malcolm  v.  Rogers 

V.  Scott 
Malone  v.  Morris 

V.  The  Mary 
Malta  (The) 

Man  V.  Ward  250, 

Manby  v.  Bewicke 
Manning  v.  Lechmere 
Mansell  v.  Feeney 
Margareson  v.  Saxton 
Maria  (The) 
Maria  Magdalena  (The) 
Marianna  Flora  (The) 
Marks  V.  Pell 
Marsh  v.  Keith 
Marshall  v.  Cliff 
Marshfield  v.  Weston 
Mai-ston  v.  Brackett 
Martin  v.  Greene 

V.  Miller 


419 
341 
295 
428 
427 
423 

455,  459,  462 
414 
343 
37 
125 
286 
310 
266 
323 
351 
430 
431 

315,  318,  344 
300 
250 
298 
331 
454 
453 
403 
323,  364 
300 
292 
342 
264, 339 
289 
199 


xxu 


INDEX   TO   CASES   CITED. 


Section 

Section 

Mary  (The)                        401, 

406, 

407 

Mills  V.  Pitman 

309 

Mason  v.  Armitage 

361 

Minerva  (The)            401,424, 

427,  462 

V.  Debow 

279 

Mitchell  V.  State 

7 

V.  People 

81,  82 

Mitclieson  v.  Oliver 

419 

Matilda  (The) 

413 

Mohawk  Bank  v.  Atwater 

369 

Matthew  i;.  Hansbury 

356 

Mohr  V.  Gault 

187 

Maund   v.    The   Monmouthshire 

Monarch  (The) 

401 

Canal  Company 

9  a 

Monck  V.  Monck 

366 

IMaury  v.  Lewis 

289 

Monday  v.  Guyer 

318 

Mawman  v.  Tegg 

329 

Montesquieu  v.  Sandys 

253 

May  V.  Brown 

175 

Montgomery  v.  The  State 

191 

V.  McAllister 

139 

Moons  V.  De  Bernales 

346 

Maynard  v.  State 

152 

Moore  v.  Aylett 

331 

Mayshew  v.  Terry 

423 

V.  Hylton 

288 

I\IeAllister  v.  The  State 

139 

V.  Pentz 

304 

McAninch  ii.  Laughlin 

361 

V.  The  State 

37 

McCampbell  v.  Gill 

276 

Moorhouse  v.  De  Passou 

351 

McCartney  v.  State 

111 

Morely  v.  Bonge 

335 

McCorkle  v.  Binns 

165 

Morewood  v.  Enequist 

387 

McDonald  v.  Rennel 

398 

Morison's  case 

59 

Mc  Daniel  v.  The  State 

223 

Morpliett  V.  Jones 

289 

McDongidd  v.  Dougherty 

264 

Morrice  v.  Swaby 

296,  300 

McGowen  v.  Young 

275 

276 

Morris  v.  Henderson 

183 

McGregor  v.  Topham 

339 

Morris  v.  Nixon 

364 

McGuffie  V.  Planters'  Bank 

287 

Morrison  v.  Arnold 

294 

McLane  v.  Georgia 

11 

Mortimer  v.  Orchard 

354 

McLaren  v.  Charrier 

382 

Moseley  v.  Garrett 

27G 

McNeil  V.  Holbrook 

257 

V.  Moseley 

351 

McPhei-son  v.  Daniels 

14 

Moser  v.  Libenquette 

364 

Meach  v.  Chappel 

381 

Mostyn  V.  Spencer 

351 

Mead  v.  Daubigny 

15 

Mott  V.  Harrington 

253 

V.  Young 

103 

Motteux  V.  Mackreth 

314 

Meadbury  v.  Isdall 

315 

316 

Mounce  v.  Byars 

264 

Mears  v.  Commonwealth 

209 

Mounsey  v.  Burnham 

293 

Mechanics'  Bank  v.  Seaton 

351 

Mount  V.  The  State 

38 

Medcalfe  v.  Medcalfe 

274 

IMowrey  v.  Walsh 

160 

Mcdlav  V.  Pierce 

336 

Muir  V.  The  State 

201 

Medora  (The) 

414 

Mullonland  v.  Hendrick 

323 

Mendizabel  v.  Machado 

384 

Munroe  v.  Wivenhoe  &  Bright 

- 

Merest  v.  Hodgson 

278 

lingsea  Railway  Co. 

384 

Merino  (The) 

396 

Murray  v.  Kellogg 

423 

Merrimack  (The) 

466 

V.  Shadwell 

316,  318 

Merriman  v.  Chippenham 

228 

230 

V.  The  State 

152 

Merry  v.  Green 

159 

V.  Walter 

296 

Mertens  v.  Haigh 

300 

Muspratt's  case 

469,  489 

ilestaver  v.  Hertz 

22 

Myers  v.  The  People 

152 

Midlothian  (The) 

414 

Myers  v.  Willis 

419 

Mifflin  V.  The  Commonwealth 

89 

Mill  V.  Mill                          848, 

350 

369 

Miller  o.  Avery 

309 

N. 

V.  McCan 

315 

318 

Nancy  (The) 

466 

V.  Talleson 

289 

Napier  v.  Staples 

301 

Milligan  Ex  parte 

470 

Napoleon  (The) 

413 

Milligan  v.  Mitchell 

303 

Nash  v.  Smith 

384 

Mills  V.  Gore 

283 

Neale  ;;.  Hagthorp 

289 

V.  Hall 

187 

Neathway  v.  Ham 

323 

V.  Martin                   468, 

469 

470 

Necott  V.  Barnard 

323 

INDEX   TO   CASES   CITED. 


XXUl 


Section 
Needham  v.  Smith  369 

Neilson  v.  McDonald  318 

Nelson  (The)  401 

V.  United  States  351,  435 

Neptune  (The)  408,  413 

Nereyda  (The)  464 

Nevil  V.  Johnson  "  341 

Nevill  V.  Demeritt  316,  318 

Newboroiigh  v.  Curry  165 

Newburg  Turnpike  Company 

V.  Miller 
Newell  V.  Norton  and  Ship 
New  England  (The) 
New  Jersey  Steamboat  Co.  v. 

Merchants'  Bank  of  Boston 
Newman  v.  James 
Newson  V.  Bufferlow 
New  York  (The)  v.  Kea 
N.  Y.  &  U.  S.  Co.  V.  Calderwood 
Niblet  V.  Daniel 
Nichols  V.  The  People 
Nicholson  v.  Lothrop 
Nied  Edwin  (The) 
Nielson  v.  Cordell 
Nightingale  v.  Dodd 
Noel  V.  Noel 
Nolan  V.  Shannon 
Norton  v.  Woods 
Nurse  v.  Bunn 
Nymph  (The) 


266 

397 

401,  403 


387 
287 
363 
407 
407 
310 
162 
173 
448 
340 
316 
297 
351 
317 
281 
415 


o. 

O'Callagher  v.  Murphy 
Ocean  Bride  (The) 
O'Connell  i'.  lieginam 
O'Hara  v.  Creap 
Oldham  v.  Carleton 
V.  Litchfield 
V.  Oldham 
Oliver  v.  Alexander 
V.  Bentinck 
O'Mealy  v.  Newell 
O'Neil  V.  Harnill 
■  Onlv  V.  Walker 
Oregon  (The) 
Orion  (The) 
Ormond  v.  Hutchinson 
Orne  v.  Townsend 
Osborne  v.  Leeds 

V.  People 
Osceola  (The) 
Osmond  v.  Tindall 
Osprey  (The) 
Owen  V.  Flack 

V.  Thomas 
Owens  V.  Dawson 


326,  351 
459 
90  a,  91,  96 
352 
384 
365 
385 

415,  423 

178 

84 

335,  372 
289 
407 
466 

281,  290 

395,  397,430 

366 

81 

413,  423 
350 
407 
408 
294 
274 


Packet  (The) 

Page  V.  Sheffield 

Palmer  v.  Van  Doren 

Palmyra  (The) 

Pardee  u.  De  Cala 

Paris  V.  Hughes 

Park  V.  Peck 

Parker  v.  Baker 
V.  Morrell 
V.  Whitby 
V.  The  Calliope 

Parkes  v.  Gorton 

Parkhurst  v.  Lowten 

Parsons  v.  Bedford 

Partridge  v.  Stocker 

Pascall  V.  Scott 

Patrick  v.  Smoke 

Patterson  v.  Gaines 

Paul  Sherman  (The) 

Payne  v.  Coles 

Pearce  v.  Page 

Pearson's  case 

Pearson  v.  Rowland 

Peele  v.  Merchants'  Insurance 
Comj)any 

Pf  irce  V.  West 

Peltbrd  v.  Buskin 

Pember  v.  Mathers 

Penderil  v.  Penderil 

Penfold  V.  Nunn 

Pennington  v.  Gittings 

Pennsylvania  v.  Craig 
V.  Huston 
V.  Sullivan 

People  (The)  v.  Abbott 
V.  Ah  Sing 
V.  Anderson 
V.  Arnold 
V.  Bealoba 
V.  Babcock 
V.  Barrett 
V.  Burke 
V.  Bush 
V.  Butler 
V.  Call 
V.  Campbell 
V.  Cogdell 
V.  Colt 
V.  Connor 
V.  Costello 
V.  Cottei-al 
V.  Croswell 
V.  Cunningham 
V.  Fisher 
V.  Fitch 


Section 


395 
423 
316 
396 
3.09 
318 
326 
383 
338 
330 
423 
290 
323 

260,  263 
349 
342 
194 
286 
404 

287,  341 

407 

6 

352 

387,416 

288 

301  a 

250,  289 

347 

302,  303 

287,  289 

216 

217 

210 

214 

152 

159 

116 

144 

84 

35 

152 

81 

55 

162 

163 

159 

140 

161 

127 

52 

164 

184, 187 

90 

103 


XXIV 


INDEX   TO    CASES   CITED. 


Section 

People  (The)  v.  Galloway 

86 

V.  Gardiner 

152 

V.  Genung 

88 

V.  Gibson 

116 

V.  Goodwin 

35,  37 

V.  Gulick 

65 

V.  Hall 

161 

V.  Harrison 

103  a 

V.  Henderson 

54 

V.  Jackson 

160,  214 

V.  Johnson      86,  121,  154 

V.  Kaatz  159 

V.  Kingsley  167 

V.  Kruiumer  104 

V.  Lamb  117 
V.  Lambert              90,  204 

V.  Law  187 

V.  Lombard  149 

V.  Lynch  237 
V.Mather      89,90,93,9  7 

V.  McDaniels  234 

V.  McGarren  159 

V.  McGee  213 

V.  McGowan  36 

V.  McKinney  200 

V.  Miller  84 

V.  Morgan  161 

V.  Murray  74 

V.  Norton  42 
V.  Olcott                     37,  97 

V.  Peabody  113 

V.  Peacock  103 

V.  Phelps  190 

V.  Pine  179 

V.  Porter  70 

V.  Randolph  215 

V.  Rathburn  112 

V.  Richards  90 

V.  Rogers  6 

V.  Ruggles        '  68 

V.  Ryan  122 

V.  Sands  184 

V.  Schcnk  158 

V.  Schuvler  158 

V.  Shall  103 

V.  Shaw  121 

V.  Snyder  80 

V.  Spaulding  382 
V.  Stater  10,  57 
V.  Stone                   84,  161 

V.  Stonecifer  7 

V.  Swan  159 

V.  Swcetman  190 

V.  Thomas  111 

V.  Van  Blarcum  54 

V.  White  145 
V.  Williams             86,  149 


People's  Ferry  Co.  v.  Beers 
Perigal  v.  Nicholson 
Perine  v.  Dunn 
Perkins  v.  Testerment 
Peters  v.  Rule 
Pettingell  v.  Dinsmore 
Petty  V.  Taylor 
Poyroux  v.  Howard 
Peyton  v.  Greene 
Peytona  (The) 
Ptbmer  v.  People 


Section 
387 
369 
182 
351 
261 
403 
289 
387 
372 
416 
149 
Philadelphia,  Wilmington,  &  Balti- 
more Railw.  Co.  V.  Quigley  179 
Phillips  V.  Evans  298 
V.  Muilman                              381 
V.  Richardson  289 
V.  The  State  213 
V.  Thompson                            351 
Phcenix  (The)                                         459 
Piatt  V.  Vattier                                       355 
Pickering  v.  Rigby  303 
Piddock  V.  Brown  318 
Pierce  v.  The  State  179 
Pierson  v.  Catlin                                   289 
V.  Meaux                                  276 
Piggott  V.  Croxhall                               348 
Piliing  V.  Armitage  289 
Pillsbury  v.  Pillsbury                             365 
Pingree  v.  Coffin                                     321 
Pinkerton  v.  Barnsley                          383 
Pitt  (The)                                     412,  414 
Pizarro  (The)                       408,  453,  466 
Pkmkett  v.  Cobbett  168 
Plymouth  Cordage  Co.  v,  Sprague     419 
Plymouth  (The)                                     387 
Podmore  v.  Gunning                             365 
Poillon  V.  Martin                                    253 
Polly  (The)                                             408 
Pomlret  v.  Windsor                             810 
Popham  V.  Brooke                                253 
Port  Mary  (The)                                    442 
Potter  V.  Potter                            282,  303 
Potts  V.  Curtis                                         346 
V.  Potts                                           872 
Poultney  v.  Wilkinson                         190 
Powell  V.  Kane                                     381 
V.  Powell                                   285 
V.  Swan                                       375 
Powers  V.  Elmendorf                           304 
Pratt  V.  Barker                                     253 
V.  Thomas                                    401 
President  (The)                                    461 
Pi-elty  V.  Parker                                   366 
Price  V.  Lytton  281 
V.  Seeley  123 
Prime  v.  Samo                                        37C 
Prince  Frederic  (The)                        401 


INDEX   TO   CASES   CITED. 


XXV 


Section 

Section 

Prince  of  AVales  v.  Liverpool 

303 

Regina  v.  Brimilow 

4,  215 

Pritchiird  v.  QuincLaut 

3(53 

I'.  Brooks 

162 

Prize  Cases  (The) 

459 

V.  Brown 

160 

Probert  v.  Milleeliamp 

352 

r.  Burt 

25 

Proceeds  of  Prizes 

441 

V.  Burton 

161 

Pugli  0.  Griffith 

76 

V.  Butler 

111 

Purcell  V.  McNamara 

348,  369 

V.  Butten 

69,  90 

Pyncent  v.  Pyncent 

323,  350 

V.  Campbell 

22 

V.  Camplin 

211 

Q. 

V.  Carlisle 

90,  90  a 

V.  Case 

69,  211 

Quentin's  case 

501 

V.  Champney 

198 

Quesenberry  v.  The  State 

27 

V.  Chappie 

47 

V.  Charlesworth 

186 

E. 

V.  Charretie 

108 

V.  Cheafor 

163 

RadcliiFe  v.  Ellis 

181 

V.  Clarke 

59,  211 

Ramy  v.  Kirk 

383 

V.  Clay 

214 

Randal  v.  Randal 

363 

V.  Closs 

103 

Rankin  v.  Maxwell 

274 

V.  Coke 

38 

Read  v.  Clark 

250 

V.  Collins 

2 

V.  Coker 

61 

V.  Conner 

51,62 

V.  The  State 

15 

V.  Cooke 

110,  111 

Redford  v.  Birley 

222 

V.  Cooper 

161 

Reece  v.  Darley 

288 

V.  Cornish 

162 

Reech  v.  Kennigate 

365 

V.  Crovvhurst 

32,  161 

Reed  v.  Cline 

261 

V.  Cruse 

6,  7 

Rees  17.  Abbott 

84 

V.  Cruttenden 

32 

V.  Bowen 

192 

V.  Curgerwen 

208 

V.  Lawless 

274 

V.  Dan  by 

229 

Regan  v.  Echols 

318 

V.  Daniell 

90  a 

Regina  v.  Abbott 

84 

V.  Davis 

159 

V.  Adams 

160 

V.  Day 

69 

V.  Aldridge 

106 

V.  Dilworth 

59 

V.  Alison 

41 

V.  Dixon 

159 

V.  Aston 

111 

V.  Doody 

2 

V.  Autey 

103 

V.  Dossett 

15 

V.  Avery 

158 

V.  Drake 

167 

V.  Bailey 

22 

V.  DriscoU 

64 

V.  Baker 

59,  79 

V.  Drury 

36 

V.  Banks 

59 

V.  Evans 

84 

V.  Barnard 

69 

V.  Eyre 

213 

V.  Barton 

5 

V.  Featherstone 

158 

V.  Beaman 

162 

V.  Fisher 

122,  125 

V.  Berry 

158 

V.  Fitchie 

103,  110 

V.  Best 

90 

V.  Fletcher 

209 

V.  Betts 

187 

V.  Foster 

111  a 

V.  Bingley 

153,  224 

V.  Frost 

92,  241 

V.  Bird 

36,  76 

V.  Gardiner 

159, 190 

V.  Birmingham  and 

V.  Gay  lor            36, 

43,  119,  120 

Gloucester  Railway  Co.  9  a  \ 

V.  Geering 

135 

V.  Blake 

90 

V.  Gilchrist 

108 

V.  Bleasdale 

9,  15 

V.  Goddard 

195 

V.  Boult 

103 

V.  Godfrey 

157 

V.  Boulter 

198 

V.  Gompertz 

90,  97 

V.  Braithwaito 

198 

V.  Goode 

162 

V.  Briggs 

208 

V.  Graham 

135 

XXVI 


INDEX   TO    CASES   CITED. 


Section 

Section 

V.  Great  North  of  England 

Regina  v.  McPherson 

2 

Railway 

9a 

V.  McRue 

210 

V.  Green 

36,  111  a 

V.  Mears 

■89 

V.  Greenwood 

43 

V.  M'Gavaran 

59 

V.  Guttridge 

214 

V.  Megson 

213 

V.  Hall 

155 

V.  Meredith 

2,59 

V.  Han.dley 

157 

V.  Michael 

15 

V.  Hannon 

66 

V.  Middleship 

129 

V.  Hanson 

59 

V.  Moland 

43 

V.  Harley 

196 

V.  Monkhouse 

6 

V.  Hawkins 

162 

V.  Moore 

6 

V.  Hayward 

162 

V.  Morgan 

160 

V.  Heane 

190 

V.  Morris 

153,  224 

V.  Hemmings 

227 

V.  Munday 

150 

V.  Hey 

162 

V.  Murphy 

93,  94 

V.  Hoatson 

103 

V.  Murray 

129 

V.  Hobson 

33 

V.  Muscott 

211 

V.  Hodgson 

103  a 

V.  Nash 

103 

V.  Holland 

139 

V.  Neale 

222 

V.  Holloway 

150 

V.  Newton 

37,  108 

V.  Holmes 

184 

V.  NIsbett 

111  a 

V.  Hopkins 

131 

V.  Gates 

84 

V.  Howell 

40 

V.  O'Brien 

140 

V.  Hughes        129 

190,  198,  210 

V.  Oddy 

15,  111,  Ilia 

V.  Huntley 

63 

V.  Overton 

195 

V.  Ion 

110 

V.  Owen 

195 

V.  James 

59 

V.  Parker 

55,  95,  194 

V.  Janson 

162 

V.  Perkins 

49 

V.  Jarvis 

111 

V.  Perry 

153 

V.  Jenkins 

162 

V.  Phelps 

123 

V.  Johnson        77 

135,  152,  IGO 

V.  Phillips 

4,  215,  220 

V.  Jones 

84,  157,  162 

V.  Philpotts 

195 

V.  Jordon 

4,  210,  215 

V.  Pierce 

159 

V.  Kain 

15,  234 

V.  Pitts 

142 

V.  Keith 

103,  104,  105 

V.  Pocock 

129 

V.  Kelly 

122 

V.  Powell 

17,  153 

V.  Kenrick 

84,  90,  90  a 

V.  Poyser 

162 

V.  Kerr 

159 

V.  Pratt 

33 

V.  Kirkham 

127 

V.  Preston 

159 

V.  Langfbrd 

220 

V.  Privett 

157 

V.  Langmaid 

32 

V.  Pulham 

49 

V.  Lavey 

195 

V.  Radlbrd 

110 

V.  Lawton 

5 

V.  Randall 

187 

V.  Lewis 

111 

V.  Ray 

161 

V.  Lines 

210 

V.  Read 

59 

V.  Lister 

184 

V.  Reardon 

213 

V.  Longbottom 

129 

V.  Reid 

38 

V.  Lowe 

129 

V.  Richards 

157 

V.  Lovett 

170 

V.  Riley 

159 

V.  Mabel 

64 

V.  Roberts 

2 

V.  ISIadge 

152 

V.  Robins 

160,  214 

V.  Manning       7, 

29,44,48,  154 

V.  Rodway 

162 

V.  Manwaring 

204 

V.  Rosenberg 

158 

V.  Marcus 

18,  103 

V.  Rowlands 

84,  90  a 

V.  Martin 

59 

V.  Rowton 

25 

V.  Mattiiews 

33 

V.  Rudick 

224 

V.  Mazeau 

104 

V.  Russell 

55 

INDEX   TO    CASES   CITED. 


XXVll 


Section 

Section 

Regina  v.  Salt 

111 

Respublica  v.  Hevice 

89 

V.  Saunders 

59,  211 

V.  M'Carty 

248 

V.  Schlesinger 

194 

V.  Newell 

190 

V.  Scott 

9a 

V.  Powell 

84 

V.  Sharman 

103 

V.  Roberts 

248 

V.  Sheffield  Gas 

Co.                 187 

Rex  V.  Abingdon 

168,  178 

V.  Shellard 

94 

V.  Adams 

32 

V.  Sherwood 

122 

i\  Aickles 

160 

V.  Simpson 

155,  225 

V.  Almon 

170 

V.  Smith 

15,  33,  103,  121 

V.  Amier 

163 

V.  Soley 

216 

V.  Amphlit 

170 

V.  Spillin 

129 

V.  Andei-son 

123 

V.  Stanton 

210 

V.  Archer 

7 

V.  Steele 

96 

V.  Armstrong 

89 

V.  St.  George 

59 

V.  Arundel 

359 

V.  Stokes 

5 

V.  Aspinwall 

214 

V.  Stolady 

195 

V.  Astley 

233 

V.  Stroud 

22 

V.  Atkinson 

104,  160 

V.  Swindall 

29 

V.  Atwell 

41 

V.  Taylor 

2,  15,  129 

V.  Aves 

121 

V.  Thistle 

162 

V.  Aylett 

195,  198 

V.  Thompson 

97,  158,  159 

V.  Backler 

109 

V.  Thornhill 

39 

V.  Bailey 

22,  76 

V.  Thui-born 

159 

V.  Baker 

229 

V.  Tollett 

158 

V.  Ball 

15, 111 

V.  Toole 

22 

V.  Balls 

15 

V.  Towry 

198 

V.  Banks 

162 

V.  Trilloe 

136 

V.  Barker 

29 

V.  Tuckwell 

42 

V.  Barlow 

266 

V.  Tyler 

8,  138 

V.  Barnett 

152 

V.  Vincent 

89,  166,  222 

V.  Beach 

167 

V.  Walkden 

59 

V.  Beale 

71 

V.  Walker 

123,  213 

V.  Beane 

170 

V.  Walls 

129 

V.  Bear 

38 

V.  Walsh 

11 

V.  Benesech 

195 

V.  Walters 

147 

V.  Benson 

192 

V.  Warman 

140 

V.  Best 

91 

V.  Watson 

184 

V.  Bingley 

104,  224 

V.  Watts 

153, 162 

17.  Birt 

216,  220,  222 

V.  Webb 

184 

V.  Blackham 

230 

V.  Webster 

198 

V.  Bolland 

103 

V.  West 

136,  159 

V.  Bontien 

109 

V.  Wheatland 

198 

V.  Bostwick 

40 

V.  Wheeldon 

76 

V.  Boyer 

17 

V.  Whitehead 

129 

V.  Brady 

192 

V.  Williams 

9,  59,  108,  211 

V.  Brain 

136 

V.  Wilson 

32,161,  162 

V.  Brannan 

109 

V.  Worley 

195 

V.  Brazier 

162 

V.  Wright 

136 

V.  Brice 

76 

V.  Yeates 

195 

V.  Brooks 

183 

V.  Young 

40 

V.  Brown 

76,  79,  233 

Reimsdyk  v.  Kane 

318 

V.  Bryan 

84 

Eemsen  v.  Remsen 

335,  336 

V.  Burdett 

90 

Resolution  (The) 

459 

V.  Burnett 

184 

Respublica  v.  Caldwell 

187 

V.  Bykerdyke 

96 

V.  Carlisle 

237,  240 

V.  Cabbage 

157 

V.  Chapman 

237 

V.  Callan 

76 

XXVIU 


INDEX   T.O   CASES   CITED. 


Section 

Sectiou 

?j.  Cannon 

235 

Rex  V.  Eldershaw 

4,  215 

V.  Carlisle 

68,  69 

V.  Elliot 

105 

V.  Carr 

193 

199 

V.  Elmstead 

234 

V.  Carrell 

80 

V.  Emden 

35,36,  192 

V.  Carroll 

6 

V.  Enoch 

136 

V.  Chalking 

80 

17.  Eriswell 

11 

V.  Charlewood 

162 

V.  Errington 

11,128 

V.  Charuock 

96 

V.  Esop 

20 

V.  Clark 

36, 

153 

V.  Evans 

16,  142 

V.  Clarke 

27,  213, 

214 

V.  Everett 

71 

V.  Codrington 

84 

V.  Farr 

77 

V.  Cohen 

201 

V.  Farrell 

225 

V.  Coleman 

160 

V.  Farrington 

14 

V.  Collicott 

104 

V.  Ferguson 

96,  129 

V.  Conner 

126, 

129 

V.  Fitzgerald 

105 

V.  Cooper 

42,  56  j 

V.  Flannagan 

79 

V.  Cope 

93 

V.  Forbes 

111 

V.  Corbett 

123 

V.  Foster 

39 

V.  Cornwall 

77 

V.  Frances 

228 

V.  Coslet 

153 

V.  Francia 

240 

V.  Coverney 

11 

V.  Fray 

126 

V.  Cox 

219 

V.  Fuller 

2,  79,  234 

V.  Creevey 

168, 

178 

V.  Furser 

38 

V.  Crespigny 

201 

V.  Gardner 

234,  483 

V.  Crocker 

111, 

112 

V.  Gascoigne 

230 

V.  Crossley 

19 

V.  Gibbons 

80 

t;.  Crowther 

108 

V.  Gibson 

80 

V.  Crunden 

184 

V.  Giles 

110 

V.  Crutchley 

136 

V.  Gill 

62,  90 

V.  Culkin 

138, 

140 

V.  Gillow 

17,  123 

V.  Curran 

123 

V.  Goodhall 

84,  86 

V.  Dade 

104 

V.  Gordon 

49 

V.  Dalby 

202 

V.  Gordon  (Lord 

George)          242 

V.  Dale 

87 

V.  Gowen 

54 

V.  Davies 

229 

V.  Grady 

11 

V.  Davis 

38,  76  1 

V.  Gray 

90,  90  a 

V.  Davison 

25 

V.  Greenacre      14 

,47,49,  119,  144 

V.  Dawson 

16 

V.  Gregg 

244 

V.  De  Berenger 

90, 

90  n 

V.  Grey 

89 

V.  Deeley 

205 

I'.  Griepe 

195 

V.  Delaval 

89, 

90  a 

V.  Groombridge 

215 

V.  Derby 

22, 

266 

V.  Groundsell 

140 

V.  Dicks 

7 

V.  Grout 

129 

V.  Dixon 

84 

V.  Hailey 

192 

V.  Donnall 

135 

V.  Haines 

76 

V.  Donnally 

223,  232 

234 

V.  Hall 

76,  171,  223 

V.  Dowlin 

193 

199 

V.  Ilammon 

150 

V.  Dullin 

17 

V.  Hammond 

90,  92 

V.  Dunimer 

191 

V.  Hampton 

109 

V.  Diinstan 

195 

V.  Hancock 

80 

V.  Dyer 

41 

V.  Hardwicke 

66 

V.  Dyson 

41 

V.  Harris 

19,  54.  110 

V.  Kccles 

90 

V.  Harrison 

111  a 

V.  Eden 

202 

V.  Hart 

167 

V.  Edwards 

232 

V.  Haughton 

52 

V.  Egerton 

234 

V.  Haworth 

107 

V.  Eggington 

80 

V.  Haynes 

84 

INDEX   TO   CASES   CITED. 


XXIX 


Rex  V.  Hayward 
V.  Hazel 
V.  Hemp 
V.  Hensey 
V.  Hevey 
V.  Hewlett 
V.  Hickman 
V.  Higgins 
V.  Higginson 
V.  Hilbers 
V.  Hindmarsh 
V.  Hodgson 
17.  Holden 
V.  Hollingberry 
V.  Holloway 
V.  Holmes 
V.  Hood 
V.  Home 
V.  Horner 
V.  Hough 
V.  Howard 
V.  Howarth 
V.  Howell 
V.  Huggins 
V.  Hughes         7, 

V.  Hull 

V.  Hulme 

V.  Hunt 

V.  Hunter 

V.  Hyans 

V.  Isaac 

V.  Jackson 

V.  James 

V.  Jarvis 

V.  Jenks 

V.  Johnson 

V.  JoUifi'e 

V.  Jones        81, 

V.  Jordon 
V.  Kelley 
V.  Kessell 
V.  King 
V.  Kinnersley 
V.  Kirkwood 
V.  Knight 
V.  Lamb 
V.  Lambert 
17.  Lapier 
V.  Lara 
V.  Lawrence 
V.  Lee 
V.  Leefe 
V.  Leigh 
V.  Levy 
V.  Lewis 


;  V.  Lloyd 

V.  Locker 

V.  Long 

V.  Longbottom 

V.  Lowe 

V.  Lynch 

V.  Lyons 

V.  Macarty 

V.  JMacauley 

V.  Mackalley 

V.  Madox 

V.  March 

V.  jNIarshall 

V.  Martin       80,  128, 

V.  Mason 

V.  Mawbey 

V.  Mayor 

V.  Mazagora 

V.  McCarther 

V.  Mcintosh 

V.  McNamee 

V.  Mead 

V.  Meakin 

V.  Melling 

V.  Middleship 

V.  Millard 

V.  Minton 

V.  M'Kearney 

V.  JMoffivtt 

17.  Mogg 

V.  Moore 

17.  Morfit 

V.  Morris 

V.  Munton 

V.  Murray 

t?.  Napper 

V.  Neville 

V.  Niccolls 

t'.  Nichol 

V.  Nicholson 

V.  Norris 

V.  North 

V.  Ogilvie 

17.  Oneby 

t?.  Opie 

V.  Owen 

V.  Paine 

17.  Palmer 

V.  Pappineau 

17.  Parker 

17.  Parsons 

V.  Partridge 

V.  Patch 

17.  Patience 

V.  Peace 

V.  Peacock 

V.  Pear 


Section 
142,  236 
98 
129 
129 
129 
125 
79 
90 
229 
140 
162 
53 
103 
139,  140,  214 
87,  127,  229 
38,  90 
206 
18,  103 
192 
105 
162 
123,  236 
6 
201 
129 
17,  19,  111 
57 
76 
105 
15 
160,  229 
157 
48,  187,  192 
194, 199 
129 
51 
184 
97 
59 
135 
90 
57 
22 
125 
90 
4 
11,  76,  169 
110 
184 
103 
93 
32 
160 
123 
22 
109 
162 


XXX 


INDEX  TO   CASES   CITED. 


Rex  V. 


Section 

Section 

V.  Pearce 

15,  168 

Rex  V.  Simpson 

129 

V.  Pedley 

54,  57,  194 

V.  Simson 

153 

V.  Perkes 

76 

V.  Slaney 

168 

V.  Perrott 

87 

V.  Smith          11,  15 

,  75,  79,  80,  98, 

I'.  Phillips 

2 

110, 

111,  Ilia,  184 

V.  Pitman 

154 

V.  Soares 

42 

V.  Pitt 

71 

V.  Spear 

162 

V.  Pl\aiipton 

71 

V.  Spencer 

192,  227 

V.  Poeock 

129 

V.  Spiller 

129 

V.  Pollman 

71 

V.  Spragg 

91 

V.  Poulton 

136 

V.  Spragge 

107 

V.  Prendergast 

195 

V.  Spriggs 

76 

V.  Preston 

240,  244 

V.  Stallion 

55 

V.  Price 

192 

V.  Stannard 

21 

V.  Probert 

56 

V.  Stapleton 

7 

V,  Prowes 

152 

V.  St.  Asaph 

179 

V.  Punshon 

190 

V.  Stedman 

122 

V.  Pywell 

84,  90,  90  a 

V.  Steine 

29 

V.  Reader 

51 

V.  Stevenson 

90 

V.  Reane 

232,  235 

V.  Steward 

229 

V.  Reeves 

136 

V.  Stock 

80 

V.  Rew 

139 

V.  Stone 

94, 244 

V.  Rhodes 

195 

V.  Story 

87 

V.  Rickman 

54,57 

V.  Styles 

195 

V.  Rispal 

90,  91 

V.  Sudbury 

217 

V.  Roberts 

90 

V.  Sullivan 

128 

V.  Robinson 

15,  22,  68,  76 

V.  Sutton 

2,  270 

V.  Robinson  and 

Taylor                98 

V.  Taplin 

231 

V.  Robson 

162 

V.  Taverner 

15,  111, a 

V.  Rogan 

223 

.   V.  Tawley 

135 

V.  Rogers 

81 

V.  Taylor             36, 

55,  68,  98,  103, 

V.  Rosinski 

59 

184, 192 

V.  Rowley 

111,  192,  193,  199 

V.  Taylors,  &c. 

89 

V.  Royce 

218,  221 

V.  Teague 

104 

V.  Russell 

76,  187 

V.  Tennent 

22 

V.  Russen 

210 

V.  Thatcher 

11 

V.  Rust 

78 

V.  Thomas 

6,  125,  127 

V.  Sainsbury 

1 

V.  Thompson 

79,  123,  140 

V.  Salisbury 

15 

V.  Thorpe 

121 

V.  Salter 

93,  94 

V.  Tindall 

186 

V.  Samuel 

122 

V.  Tolfree 

158 

V.  Saunders 

141 

V.  Tooke 

97 

V.  Scholfield 

54 

V.  Treeve 

85 

V.  Scott 

217 

V.  Tucker 

15 

V.  Sears 

159 

V.  Turner 

80,  90,  90  a 

V.  Sodlcr 

184 

V.  Twyning 

207 

V.  Sellers 

136 

V.  Tye 

140 

V.  Semple 

162 

V.  Van  Butchell 

129 

V.  Senior 

136 

V.  Vandercomb 

36 

V.  Sergeant 

98 

V.  Vaughan 

2,  71,  244 

V.  Seward 

89 

V.  Verelst 

190 

V.  Sharpless 

160 

V.  Vincent 

90 

V.  Sheen 

36 

17.  Voke 

15 

V.  Sheppard 

111 

V.  Vyse 

153 

V.  Sheridan 

210 

V.  Waddington 

68,  69 

V.  Shukard 

110 

V.  Walker 

22,  129 

V.  Simons 

227,  233 

t'.  Wall 

103,  105 

INDEX   TO   CASES   CITED. 


XXXI 


Section 

Rex  v.  Walsh  153,154 

V.  Walters  80 

V.  Ward  103,  111,  187 

V.  Waters  140,  142 

V.  Watson  160,  173,  240 

V.  Watts  187 

V.  Webb  103,  129,  139 

V.  Wegener  169 

V.  Westwood  80 

V.  Whalley  64,  123 

V.  ^Vheatly  1,  2,  13,  84 

V.  Wheeldon  76 

V.  AVhite  40,  186 

V.  Whitehead  99 

V.  Whitely  121 

V.  Wiggs  126 

V.  Wilders  86 

V.  Wllkins  160 

V.  Williams  169 

V.  Williamson  129 

V.  Winkworth  15,  233 

V.  Withers  123 

V.  Woodcock  11 

V.  Woodfall  13 

V.  Woolston  68 

V.  Wylie  15,  19,  111  a 

V.  Wynne  159 

V.  York  4 

V.  Young  86 

Reynell  v.  SjDrye  295 

Khodes  v.  Bate  253 

V.  Selin  323 

Rich  V.  Jackson  361,  363 

Richard  Busteed  (The)  387 

Richards  v.  Commonwealth  162 

Richardson  v.  Golden  323,  351 

Richels  v.  State  60 

Richmond  (The)  447 

Ridgeway  v.  Darwin  281 

Rico  V.  Gualtier  385 

Rigg  V.  Curgenven  73 

Ring  V.  Franklin  419 

Ringwalt  V.  Ahl  261 

Rising  Sun  (The)  408,  453,  466 

Roach  V.  Chapman  387 

Robbins  y.  Davis         295,296,297,301 

V.  Tread  way  165 

Robert  (The)  460 

Robert  Edwards  (The)  406 

Roberts  v.  Anderson  341 

V.  The  Commonwealth         162 

Robinson  v.  Gumming  335,  372 

V.  Sampson  315 

V.  Scotney  281 

Robison  v.  Beall  181 

Rockwell  V.  State  22 

Rogers  v.  Clifiton  168 


Rogers  v.  Dibble 

V.  Earl 

V.  The  People 
Rogerson  v.  Whittington 
Rohan  V.  Sawin 
Romeo  (The) 
Rosalie  &  Betty  (The) 
Rose  (The) 
Rosewell  v.  Bennett 
Rovena  (The) 

Rowe  V. 

Rowland  v.  Sturges 
Rowley  v.  Adams 

V.  Ridley 
Ruby  (The) 
Rucker  v.  Howard 
Rude  V.  Whitchurch 
RufFner  v.  McConnell 
Ruloff  V.  The  People 
Rump  V.  Commonwealth 
Runnels  v.  Jackson 
Russell  V.  Dickson 
Rust  V.  Larue 
Rustell  V.  Macqulster 
Rutter  V.  Baldwin 


S. 


Section 

369 

363 

6 

315, 338 
123 

448,  463 
466 
407 
366 
429 
384 
309 
333,  336,  345 
347 
435 
381 
281 
360 
30,  131 
190 
365 
367 
180 
15 
278 


Sallee  v.  Duncan 
Sally  (The) 
Sally  Magee  (The) 
Salmon  v.  Claggett 
Saltern  v.  Melhuish 
Sampson  v.  Smith 


276,  287 
395,  442,  462 
459,  462,  464 
289,  300 
359 
63,  64 
V.  The  Commonwealth         52 
Samuel  (The)  396,  433,  462 

Samuel  v.  Payne  123 

Sanchez  v.  People  116,  144 

Sandford  v. 336 

V.  Paul  346 

Sands  v.  Robinson  168 

San  Jose  Indiano  (The)     419,  442,  452 


Sara  Barnardina  (The) 

412 

Sarah  (The) 

459 

Sarah  Ann  (The) 

394, 403 

Sawyer  v.  Bowyer 

336 

Saylor's  Appeal 

261 

Schacht  V.  Otter 

441 

Schwarz  v.  Wendell 

285 

Scott  V.  Waitham 

306 

Scribner  v.  Beach 

64 

Sea  Ins.  Co.  v.  Stebbins 

381 

Sears  v.  Shafer 

253 

Sedgwick  v.  Stanton 

180 

Sergeant  v.  Biddle 

433 

S.  G.  Owens  (The) 

419 

xxxu 


INDEX  TO   CASES   CITED. 


Section 

Section 

Shaffer  v.  Kintner 

191 

Snow  V.  Wope 

423 

Shannon  (The) 

407 

Sociedade  Feliz  (The) 

428 

Sharp  V.  U.  S.  Insurance  Co. 

41!) 

Soglazie  (The) 

459 

V.  Wilhite 

191 

Souverby 

V.  Arden 

318 

Shaw's  case 

469,472 

Speculation  (The) 

445 

Shaw  I'.  Lindsey         346,  349, 

351,  352 

Speed  (The) 

407 

V.  Thompson 

190 

Spence  r. 

Allen 

346 

Shay  V.  People 

130 

Spencer  v 

Eustis 

429 

Shearer  v.  The  State 

24 

Sproule  V. 

Samuel 

315 

Sheckell  v.  Jackson 

168 

St.  Lawrence  (The) 

466 

Shelburne  v.  Inchiquin 

363 

Staat  Embden  (The) 

443 

Shepherd  v.  The  People 

53 

Stafford  v 

Bryan 

284 

Sheriff  v.  Coates 

329 

Stanney  v 

.  Walmsley 

345 

Sherwood  v.  Hall 

393,413 

Stanton  v 

Delaware  Ins.  Co. 

304 

Shipley  v.  Todhunter 

170 

State  (The)  i'.  Abbey 

204 

Shipp  V.  Swan 

863 

V.  Alexander 

201 

Shoemaker  v.  The  State 

147 

V.  Allen 

153 

Short  Staple  (The) 

404 

V.  Allison 

217 

Shudall  V.  Jekyll 

366 

V.  Ames 

102,  103 

Sibert  v.  McAvoy 

261 

V.  Anthony 

98 

Sidgier  v.  Birch 

332 

V.  Antonio 

111,  HI  a 

Sidney  v.  Sidney 

356 

V.  Arlin 

153 

Sills  V.  Brown                        1 1 

407,416 

V.  Avery 

2,  169 

Simmons  v.  Gutteridge 

333 

V.  Bailey 

184 

V.  The  Commonwealth       152 

V.  Bancroft 

75,  83 

Simpson  v.  Morris 

65 

V.  Bartlett 

152 

Sims  V.  Urry 

363 

V.  Bean 

167 

Sinclair  v.  James 

352 

V.  Bell 

186,  187 

Sisters  (The) 

419,  452 

V.  Benedict 

59 

Skerrett  v.  Lynch 

281 

V.  Bennett 

32 

Slason  V.  Wright 

288 

V.  Bertheol 

184 

Slee  V.  Manhattan  Co. 

364 

V.  Bishop 

202 

Sloan  V.  Little 

287 

V.  Bond 

157 

Slocum  V.  Marshall 

253 

V.  Bonney 

167 

Smith  V.  Althus 

335,  336 

V.  Boon 

76 

t'.  Barnes 

299 

V.  Bowen 

11 

V.  Beaufort 

298 

V.  Brazil 

218,  219 

V.  Betty 

261 

V.  Brewster 

32 

V.  Bouchier 

191 

V,  Briggs 

64 

V.  Brush 

354 

V.  Brooks 

216,  219 

V.  Burnham 

322,  323 

V.  Brown 

38 

V.  Chapman 

363 

V.  Buchanan 

90 

V.  Clark 

286 

V.  Bullock 

147 

V.  Clarke 

355 

V.  Burnham 

177 

i;.  Effingham 

337 

V.  Candler 

106 

V.  Graham 

336 

V.  Carr 

106 

V.  Kirkpatrick 

324 

V.  Cassados 

153 

V.  Lane 

341 

V.  Chandler 

68 

V.  Potter 

277 

V.  Chapin 

46 

V.  Shaw 

468,  469 

V.  Cole 

216 

V.  Smith 

351 

V.  Connolly 

216 

V.  The  State 

184,  211 

V.  Cooper 

74 

V.  Webster 

332 

V.  Cornwell 

6 

V.  Woodroffe 

382 

V.  Crow 

61 

3nell  V.  Faiisatt 

420 

V.  Crowell 

24 

V.  The  Independence 

429 

V.  Davidson 

131 

Snow  V.  Phillips 

274 

V.  Davis 

7,  59,  61 

INDEX  TO   CASES   CITED. 


xxxm 


State  (The)  v.  Dennin 
V.  Dewitt 
V.  Dominges 
V.  Douglass 
V.  Dumphey 
V.  Dunlap 
V.  Elliott 
V.  Ellis 
V.  Fairclough 
V.  Farley 
V.  Farrier 
V.  Fassett 
V.  Ferguson 
V.  Field 
V.  Ford 
V.  Fostel 
V.  Freeport 
V.  Furlong 
V.  Garrigues 
V.  Gazell 
V.  Ginns 
V.  Godet 
V.  Goin 
V.  Goode 
V.  Gorman 
V.  Graham 
V.  Grant 


Section 
65 
90 
11 
152 
149 
87 
58 
152 
162 
165 
2 
190 
159 
27 
25 
103 
187 
161,  201 
37 
154 
80 
161 
4 
43 
162 
184 
22,  161 
V.  Great  Works  IMilling 

and  Man.  Co.  9  a 

V.  Gregory  190 

V.  Guild  4 

V.  Hall  37 

V.  Ham  204 

V.  Handy  108,  215 

V.  Hascall       190,  193,  199 
V.  Hathaway  195,  201 

V.  Hawkins  157 

V.  Hay  ward  198,  201 

V.  Henderson  165 

V.  Henry  77 

V.  Hewett  89 

V.  Hill  116,  147 

V.  Hogg  161 

V.  HoUey  103 

V.  Holloway  207 

V.  Hooker  65 

V.  Humphries  103  a 

V.  Jefferson  71 

V.  Johnson       14,  127,  147, 
190,  214 
V.  Jones  32,  112 

V.  Justice  84 

V.  Keene  192 

V.  Knight  14 

V.  Langford  80 

V.  Lattin  212 

V.  Lavalley  196 


State  (The)  v.  Lawrence 
V.  Lazarus 
V.  Leach 
V.  Le  Blanc 
V.  Lindley 
V.  Litch 
V.  Little 
V.  Lyon 
V.  Matthis 


Section 

106 

64 

192 

210 

36 

12 

38 

57 

186 

v.  McAllister      111,111a 
V.  McCants  6,  148 

V.  McDaniel  86 

u.  McDonnell         116,144 
V.  McGowan  52 

V.  McPherson      104,  Ilia 
V.  Merrick  87 

V.  Merrill  25,  147 

V.  Mills  86,  87 

V.  Mitchell  56 

V.  Moffat  190 

V.  Moller  191 

V.  Moore  28,  1 84 

V.  Morgan  61 

V.  Morris  and  Essex 

Railroad  Co.  9  a 

V.  IMorrison  24 

V.  Morton  104,  111  a 

V.  Mumford  19  7 

V.  Murphy  89 

V.  Murray  90 

V.  Ned  37 

V.  Norrls  192,  195 

V.  Norton  89 

V.  Norvell  38 

V.  Noyes  91 

V.  Offutt  190 

V.  Orrell  120,  131 

V.  Pendergrass  63 

V.  Peter  213 

V.  Pierce  104 

V.  Phipps  187 

V.  Porter  192 

V.  Potts  107 

V.  Pray  202 

i;.  Quick  161 

V.  Quinn  64 

V.  Ravelin  106 

V.  Ray  38 

V.  Richardson  65 

I'.  Ricker  46 

V.  Rickey  90  a 

V.  Ripley  89 

V.  Roane  115 

V.  Roberts  89,  90 

V.  Reonnals  152 

V.  Roper  184 

V.  Ross  36 


XXXIV 


INDEX  TO   CASES   CITED. 


Section 

State  (The)  v.  Rowley  89,  90 

V.  Rutherford  115 

V.  Samuel  122 

V.  Sandy  55 

V.  Scott  120 

V.  Scovel  154 

V.  Seay  152 

V.  Self  162 

V.  Sewell  148 

V.  Shaw  52 

V.  Shepard  36,  60 

V.  Shoultz  144 

V.  Simpson  152 
V.  Smith            14,  59,  103, 

^  111, 113 

V.  Snow  216,  218 

V.  Somerville  152 

V.  Sober  94 

V.  South  wick  165 

V.  Spencer  5 

V.  Standifer  36 

V.  Stark  5 

V.  Steele   .  190 

V.  Stevens  470 

V.  Stewart  52 

V.  Strat  195 

V.  Stroll  84 

V.  Sutcliffe  51 

V.  Swan  6 
V.  Taylor            54,  55,  163 

V.  Thawley  27 

V.  TiUery  153 
V.  Tilly              27,  147,  149 

V.  Tom  97 

V.  Toole  54 

V.  Trexler  229 

V.  Turner  14 

V.  Tweedy  36 

V.  Twitty  80,  111 

V.  Valentine  11 
V.  Van  Here  ten      15,  111 

V.  Vittum  22 

V.  Vt.  C.  R.  R.  9  a 

V.  Wall  190 

V.  Waller  184 

V.  Washington  103 

V.  Waters  121 

V.  Watson  153,  160 

V.  Weaver  167 

V.  Weed  123 

V.  Wells  25 

V.  Weston  32,  159 

V.  Wetherall  184 
V.  White           75,  165,  2ol 
V.  Williams       15,  34,  106, 
111,  133 

V.  Willis  7G 


Section 

State  (The)  v.  Wilson  76,  80,  153 

V.  Wood  64 

V.  Woodson  88 

V.  Woolverton  201 

V.  Younger  90 

V.  Zellers  145 

Steamboat  H.  D.  Bacon  413 

Steamboat  Orleans  v.  Phoebus  387 

Stabbing  v.  Spicer  22 

Steele  v.  Southwick  164,  165 

Steinman  v.  Mc Williams  195 

Stephen  v.  Morris  303 

V.  Myers  59 

Stephenson  v.  Stephenson  278,  279, 

287 

Stevens  v.  The  Commonwealth  52 

Stevenson  v.  Anderson  384 

Stewart  v.  Turner  332 

Stiles  V.  Brock  364 

Stockdale  v.  Hansard  178 

Stockton  V.  Ford  253 

Stockwell  V.  North  71 

Stokes  V.  McKerral  369 

Storm  V.  Mann  385 

Story  V.  Lenox  295 

V.  Livingston  324 

Stoughton  V.  State  187 

Stouten  burgh  v.  Tompkins  361 

Stradford's  case  469 

Stratford  v.  Ames  351 

Strong  V.  Blanchard  277 

V.  Stewart  364 

Stuart  V.  Lovell  15,  168 

Sturgis  V.  Morse  318 

Success  (The)  459 

Sullivan  v.  Blackwell  253 

Sulston  V.  Norton  72,  73 

Summit  (The)  404 

Sumner  v.  The  State  29,  131 

Sutton  V.  Buck  419 

V.  Wilson  350,  351 

Suydam  v.  Dequindre  292 

Swallow  (The)  415 

Swan  V.  The  State  6,  148 

Swett  V.  Black  401,412 

V.  Poor  180,  183 

Swift  V.  Hosnier  286 

Swinford  v.  Horner  336 

Sydserff  v.  Regina  90 


Taber  v.  Jenny 
Taggard  i'.  Loring 
Talbot  V.  Rutledge 

V.  Sibree 
Tallmadge  v.  Pell 


894 
419 
290 
375 
302 


INDEX   TO   CASES   CITED. 


XXXV 


Tallmadge  ?'.  Tallmadge 
Tanswell  v.  Scurrah 
Tappan  v.  Evans 
Tate  V.  Connor 
Taylor  v.  Barclay 

V.  Carry  1 

V.  Cole 

V.  Georgia 

V.  Moore 

V.  Rundell 

V.  Salmon 

V.  Taylor 
Thackeray's  case 
Thallhimer  r.  BrinkerhoflF 


Section 

315 

351 

264 

276 

270 

387 

274 

165 

315 

296 

307 

253 

482 

180,  181, 

182 

Thames  (The)  407 

Thayer  v.  Swift  381 

Thelluson  v.  Cosling  270 

Thomas  and  Henry  (The)  413,  414, 434 

Thomas  v.  Croswell  168 

V.  Davis  363 

V.  Graham  316 

V.  Lane  427 

V.  Rawlings  300 

V.  RusseU  123 

V.  Visitors,  &c.  373 

Thompson  i;.  Harrison  316 

V.  Heffernan  253 

V.  Lamb  281 

V.  Lambe  290 

V.  The  Philadelphia  415,  430 

Thorington  v.  Carson  276 

Thornton  v.  Stewart  384 

Thurston  v.  Percival  180 

Thynn  v.  Thynn  365 

Tickell  V.  Read  65 

Tilton  (The)  420 

Tilton  V.  Tilton  363 

Tippins  V.  Coates  323 

Titus  V.  Cortelyou  301 

Tobin  V.  Wilson  276 

Todd  V.  Hardie  375 

Tolson  V.  Tolson  318 

Torrance  v.  Hurst  165 

Towan  (The)  486 

Town  V.  Needham  287 

Townsend  v.  Ives  294 

V.  Stangroom    360,  361,  363 

!'.  The  State  179 

Traveller  (The)  407 

Treadwell  v.  Joseph  395,  404 

Trimlestown  v.  Kemmis  274,  275 

Triton  (The)  401 

Troup  V.  Sherwood  348 

Tuberville  v.  Savage  61 

Tucker  v.  BufEngton  419 

V.  Madden  360 

VOL.  III.  C 


Section 

Tully  V.  Reed  65 

Turner's  case  90  a 

Turner  v.  Burleigh  310,  331 

V.  Trelawney  346 

Turns  v.  The  Common  wealth  22 

Two  Brothers  (The)  453 

Tyler  v.  Drayton  298 

Tyner  v.  The  State  131 

Tyrwhitt  v.  Wayne  357 


u. 


Udall  V.  Steamship  Ohio  397 

Underbill  v.  Cortlandt  •     351 

Union  (The)  404 

Union  Bank  y.  Barker  278 

V.  Geary  284,  286 

V.  Knapp  372 

United  States  v.  Armstrong  144 

V.  Bailey  190 

Z7.  Battiste  179 

V.  Britton  107,  167 

V.  Burns  111 

V.  Burr  241,  242 

V.  Cassidy  426 

V.  Clew  162 

V.  Cole         91,  92,  93,  94 

V.  Coolidge  37 

V.  Craig  104 

V.  Doebler  107,  111 

V.  Drew  6 

V.  Forbes  6 

V.  Freeman  142 

V.  Furlong  419 

V.  Gilbert  35,  37 

V.  Hames  426 

V.  Hair  Pencils  320, 
350, 434 

V.  Hamilton  426 

V.  Hand  59 

i;.  Hanway  242 

V.  Haskell  37 

V.  Hayward  404 

V.  Hodges  244 

V.  Jenkins  419 

V.  Jones  223 

r.  Kings  103  a,  111 

V.  Lunt  58 

V.  McGlue  5 

V.  Meyers  61 

V.  Mingo  116,  122, 
144 

V.  Mitchell  110,  241, 
242,  428 

V.  Morris  179 

V.  Morrow  105,  ItO 


XXXVl 


INDEX   TO   CASES   CITED. 


Section 

United  States  v.  Packages,  &c.  898 

V.  Perez  37 

V.  Pins  304 

V.  Price  364 

V.  Ravara  6 

V.  Richardson  61 

V.  Ross  40,  144 

V.  Roudenbush  25, 

111, 111  a 
V.  Samperyac,    261,  276, 
337 
V.  Shoemaker  37 

V.  Smith  351 

V.  Ten  Hogsheads, 

&c.  404,  416 

V.  Travars  1 23 

V.  Vigol  242 

V.  Warner  129 

V.  Wiltberger  115, 

122,  140 

V.  Wine,  Casks  of       395 

V.  Wood  198 

Updegraph  v.  The  Commonwealth      68 

Ure  V.  Coffman  407 

Usher  V.  Severance  165 


V. 

Vandyke  v.  Van  Beuren  183 

Van  Duzen  v.  Howe  103 

Van  Hook  v.  Pendleton  319 

Van  Stecnberg  v.  Kortz  191 

Van  Vechten  v.  Hopkins  175 

Van  Wyck  v.  Norvell  289 

V.  Aspinwall  168 

Vasse  V.  Mifflin  304 

Vattier  v.  Hinde  326 

Vaughan  v.  Lloyd  336 
V.  Worrall           348,  351,  369 

Vaugine  v.  Taylor  351 

Veacock  v.  McCall  423 

Venus  (Thr)  461,  464 

Vernard  v.  Hudson  406 

Vibilia  (The)  431 

Victori^i  (The)  407 
Vigilantia  (The)                  447,  452,  459 

Vin:d  v.  Biinill  419 

Vigil  (The)  395,  407 

Viendsi'hap  (The)  448 
Vrow  Anna  Catherina  (The)    442,459 

Vrow  Hermina  (The)  466 


Wadeer  v.  East  India  Company        800 


Section 

Wait  V.  Gibbs  425 

Walburn  v.  Ingilby  296 

Walker  v.  Symonds  309,  346 

V.  Sedgwick  261 

V.  Walker  375 

V.  Wingfield  317 

Wallace  v.  Hodgson  346 

V.  Pomtret  366 

Walmsley  v.  Child  884 

Walsham  v.  Stainton  300 

Walsingham  Packet  (The)  442 

Walton  V.  Hobbs  354 

Ward  V.  Hill  261,  264,  337,  339 

V.  Meath  278 

V.  The  People  43 

Waring  v.  Clarke  387,  394 

Warren  v.  The  State  179 

V.  Warren  70 

Waterman  v.  Dutton  261,  337 

Waters  v.  Creagh  287 

Watertown  i'.  Cowen  316 

Watkins  v.  Fursland  343 

Watkyns  v.  Watkyns  375 

Watson  V.  Cresan  106 

V.  Renwick  295,  297 

V.  State  152,  160 

Watts  V.  Brains  124 

V.  Hyde  289 

Weaver  v.  Bush  64,  65 

V.  Shryvek  364 

V.  Thompson  397 

V.  Ward  62 

Wedderburn  v.  Wedderbum  253 

Weirbach  v.  Trone  84 

Weleker  v.  Pelletier  22 

Wells  c.  Hodge  363 

Welvaart  (The)  408,  452,  464 

Wendover  v.  Hogeboom  419 

Wesley  v.  Thomas  363 

West  V.  Paige  822 

Western  v.  Penniman  419 

Western  Railroad  Company  v. 

Babcock  361 

Western  v.  Penniman  419 

Weymouth  v.  Boyer  316 

Whaley  v.  Norton  323,  356,  4  72 

Whatlev  V.  Smith  317 

Wiieaty.  Graham  299 

Wlieeler  v.  Trotter  356 

Whipple  V.  Lansing  318 

V.  Van  Rensselaer  318 

Whitaker  v.  Newman  261 

V.  Wright  336 

White  V.  Buloid  302 

V.  Fussell  323,  348,  350 

V.  Hess  28 

V.  Nichols  165,  168 


D 

IDEX   ' 

ro  c 

ASES   CITED, 

XXXVll 

Section 

Section 

Whitehorn  v.  Hines 

253 

Wise  V.  Withers 

470 

Whitelegg  v.  Whitelegg 

385 

Witcherly  v.  Witcherly 

335 

Whitelocke's  case 

478 

Witts  V.  Campbell 

314 

Whittinjrton  v.  Roberts 

287 

VVolcott  V.  Knight 

180 

Wioherley  v.  Wicherley 

372 

Wolton  V.  Gavin 

468 

Wickham  v.  Blight 

423 

Wolverton  v.  The  State 

204 

V.  Conkin 

182 

Wood  V.  Cole 

351 

Wilcox  V.  Calloway 

183 

V.  Goodlake 

436 

Wilford  V.  Beaseley 

342 

V.  Hamerton 

348 

Wilkes  0.  Dinsman 

63 

V.  Harpin 

382 

Wilkins  V.  Woodfia 

287 

V.  Mann 

346,  348 

Wilkinson  v.  Beal 

294 

V.  McGuire 

180 

Willan  V.  WiUan 

336 

346 

V.  Midgley 

363 

Willard  v.  Dorr 

423 

V.  Rowecliffe 

318 

William  Harris  (The) 

398, 

415 

V.  Nimrod  (The) 

429 

William  Jarvis,  The  Ship 

410 

Woodbury  v.  Obear 

5 

William  Penn  (The) 

403 

Woodcock  V.  Bennet 

284,  285 

Williams  v.  Bean 

318 

Wooden  v.  Haviland 

363 

V.  Beard 

315 

V.  The  People 

213 

V.  Bishop 

261 

Woodrop  Sims  (The) 

407 

V.  Broadhead 

343 

Woolam  V.  Hearn 

363 

V.  Goodchild 

346 

Woolett  V.  Roberts 

274,  275 

V.  Llewellyn 

355 

Wright  V.  Arnold 

253 

V.  Maitland 

318 

V.  Black 

90 

V.  Ogle 

167 

V.  Clements 

167 

V.  Prince  of  Wales  Life,  &c. 

V.  Miller 

275 

Co. 

295 

V.  Proud 

253 

V.  Purdy 

372 

V.  The  State 

211 

V.  Tlie  State 

43 

215 

Wrottesley  v.  Bendish 

278 

V.  Williams 

297 

,  326 

Wye  he  V.  Green 

361 

Williamson  v.  Henley 

182 

Wyld  V.  Ward 

346 

V.  Hunter 

346 

W^ynne  v.  Humberston 

300 

V.  Hutton 

309 

Willings  V.  Consequa 

320 

351 

Willis  u.  Henderson 

286 

Y. 

V.  Watson 

180 

Yates  V.  Thomson 

28 

Wills  V.  Noyes 

14 

Yingling  v.  Hesson 

261 

Wilson  V.  Allen 

318 

Young  V.  Grundy 

276 

Wilson  V.  Boerem 

236 

V.  Wright 

292 

PAET  Y. 


EVIDENCE  IN  PROSECUTIONS 


CRIMES    AT    COMMON    LAW. 


GENERAL    PRINCIPLES. 


VOL.  III. 


TREATISE 


THE    LAW    OF    EYIDENCE. 


PART  V. 

OF    EVIDENCE    IN    PROSECUTIONS    FOR    CRIMES    AT 
COMMON    LAW. 


GENERAL    PRINCIPLES. 

[*§  1.    Crimes  classified  and  defined. 

2.  The  attempt  to  commit  a  crime  a  misdemeanor. 

3.  Infants,  persons  non  compotes  mentis,  and  those  deficient  in  will,  incapable  of  crime. 

4.  Infancy  divided  into  three  stages. 

5.  Sanity  presnmcd  until  contrary  appears. 

6.  Criminal  acts  the  immediate  result  of  intoxication  punishable. 

7.  Fanes  covert,  principal  class  of  persons  acting  under  constraint  of  superior  power. 

8.  Effect  of  duress  per  minas  considered. 

9.  Effect  of  commission  of  criminal  act  by  innocent  agents. 
9  a.    Corporations  indictable. 

10.  Constitution  of  the  United  States  declares  the  accused  has  a  right  "  to  be  in- 

formed of  the  nature  and  cause  of  the  accusation." 

11.  The  party  accused  is  entitled,  as  of  common  right,  to  be  confronted  with  the 

witnesses  against  him. 

12.  Answer  to  criminal  prosecution  at  common  law  is  "  not  guilty." 

13.  Intention  of  an  act  constitutes  its  criminality. 

14.  Rule,  that  every  person  is  presumed  to  contemplate  the  ordinary  and  natural 

consequences  of  liis  own  acts,  applied  even  in  capital  cases. 

15.  Evidence  of  acts  and  declarations  at  other  times  admitted  to  prove  intent  of  act 

charged. 

16.  Where  several  intents  comprised  in  one  allegation,  proof  of  any  one  which 

would  constitute  the  crime  sufficient. 

17.  Intent  must  be  proved  as  alleged. 

18.  Not  necessary,  in  proving  an  intent  to  defraud  a  particular  person,  to  show  that 

prisoner  had  that  person  in  mind. 

19.  Corpus  delicti  must  be  proved  before  criminal  intent 


4  LAW   OF  EVIDENCE  IN   CRimNAL   CASES.  [PAET  V. 

§  20.  Mistake  or  ignorance  of  the  law  no  excuse. 

21.  Mistake  or  ignorance  of  fact  sometimes  excuses. 

22.  Names  of  persons  injured  must  be  proved,  as  charged. 

23.  Substance  of  the  issue  must  be  proved. 

24.  Burden  of  proof  same  as  in  civil  cases. 

25.  Evidence  of  character,  when  admitted,  should  be  confined  to  the  trait  of  charac- 

ter in  issue. 

26.  Evidence  of  character  not  admissible  in  all  prosecutions. 

27.  Character  of  person  on  whom  offence  was  committed  generally  not  admissible. 

28.  Criminal  charge  must  be  proved  by  our  own  rules  of  evidence. 

29.  Guilt  of  the  accused  must  be  fully  proved. 

30.  Corpus  delicti,  and  identity  of  prisoner,  must  be  proved. 

31.  This  rule  more  frequently  and  urgently  demanded  in  prosecutions  for  homicide 

and  larceny, 

32.  Recent  possession  only  justifies  the  inference  of  guilt. 

33.  Prisoner's  possession  must  be  exclusive. 

34.  Presumption  from  suppression,  fabrication,  or  destruction  of  evidence,  not  con- 

clusive. 

35.  United  States  constitution  provides  that  no  person  shall  "  be  subject,  for  the. 

same  oflence,  to  be  twice  put  in  jeopardy  of  life  or  limb." 

36.  Prisoner  must  prove  the  identity  of  the  offence  in  his  defence.     Charges  need 

not  be  precisely  alike  in  form. 

37.  This  provision  differently  interpreted. 

38.  Acquittal  or  conviction  procured  by  fraud  of  prisoner  not  good  defence. 

39.  Admissions  of  fact  not  permitted  unless  made  in  open  court.] 

§  1.  A  crime  is  defined  to  be  an  act,  committed  or  omitted,  in 
violation  of  a  public  law,  either  forbidding  or  commanding  it.^  In 
the  common  law,  crimes  are  divided  into  three  classes  :  treasons, 
felonies,  and  misdemeanors.  All  public  wrongs  below  the  degree 
of  felony  are  classed  as  misdemeanors,  and  may  be  the  subject  of 
indictment,  either  at  common  law  or  by  statute.  Misdemeanors, 
again,  are  divided  into  two  classes  :  mala  in  se,  and  mala  proJiibita. 
In  the  former  class  is  comprised  whatever  mischievously  affects  the 
person  or  property  of  another,  or  openly  outrages  decency,  or  dis- 
turbs puljlic  order,  or  is  injurious  to  public  morals,  or  is  a  breach 
of  official  public  duty,  when  done  wilfully  or  corruptly.  The  lat- 
ter comprises  the  doing  any  matter  of  public  grievance  forbidden 
by  statute,  or  omitting  any  matter  of  public  convenience  com- 
manded by  statute,  but  not  otherwise  wrong  ;  whether  it  be  or  be 
not  expressly  made  indictable,  or  visited  with  any  specific  penalty, 
by  the  statu te.^ 

^  4  Bl.  Comm.  5.     This  definition  com-  injury  of  the  public.     Rex  v.  Whcatly,  1 

prises   all   crimes,    whether   existing    and  Ijcading  Crini.  Cases,  3,  note, 

recognized   as   such    at   common  law,  or  ^1  Kuss.  on  Crimes,  45,  46,  (3d  edit.) ; 

whether   created   wholly   by   statute.      A  Rex  v.  Sainsbury,  4  T.  R.  457  ;  2  Inst, 

crime  at  common  law  may  be  defined  as  163. 
an  act  done  with  criminal  intent,  to  the 


PART  v.] 


GENERAL  PRINCIPLES. 


§  2.  The  attemjJt  to  commit  a  crime,  though  the  crime  be  but  a 
misdemeanor,  is  itself  a  misdemeanor.  And  to  constitute  such  an 
attempt,  there  must  be  an  intent  that  the  crime  should  be  commit- 
ted by  some  one,  and  an  act  done  pursuant  to  that  intent.-*  Quid- 
quid  criminis  conswnmationi  deeat,  conatum  constituit?  Thus,  to 
incite  another  to  steal,  or  to  persuade  a  public  officer  to  receive  a 
bribe,  are  alike  misdemeanors.^  So,  to  possess  instruments  for 
coining  false  money,  with  intent  to  use  them.*  So,  to  send  threat- 
ening letters  ;  ^  to  challenge  another  to  fight,  whether  with  fists  or 
weapons  ;  ^  to  solicit  another  to  commit  adultery.'^ 
'  §  3.  In  regard  to  the  persons  chargeable  with  crimes,  it  is  proper, 
in  the  first  place,  to  consider  the  evidence  of  criminal  capacity,  or 
the  degree  of  reason  and  understanding  which  is  sufficient  to  ren- 
der a  person  liable  to  the  penal  consequences  of  his  actions.  Per- 
sons deficient  in  this  respect  are  of  two  classes  :  infants,  and  per- 


1  1  Euss.  on  Crimes,  46  ;  Eex  v.  Wheat- 
ly,  1  Leading  Crim.  Cases,  1,  and  note  ; 
Regina  v.  Meredith,  8  C.  &  P.  589 ;  Eex. 
V.  Higgins,  2  East,  5,  17-21  ;  Rex  v.  Kin- 
nersley,  1  Stra.  193,  196.  In  some  of  the 
United  States,  the  attempt  to  commit  a 
crime  is  punishable  by  statute.  And  see 
Commomvealth  v.  Harrington,  3  Pick.  26 ; 
Commonwealth  v.  McDonald,  5  Cushing, 
365.  [*An  attempt  to  commit  a  felony 
can  only  be  made  out  where,  if  no  inter- 
ruption had  taken  place,  the  felony  could 
have  been  effected.  And  where  a  person 
puts  his  hand  into  tha  pocket  of  another, 
with  intent  to  steal  what  he  can  find  there, 
and  the  pocket  is  empty,  he  cannot  be  con- 
victed of  an  attempt  to  steal.  Reg.  v.  Col- 
lins, 10  Jar.  (N.  S.)  686.  "I  think  at- 
tempting to  commit  a  felony  is  clearly 
distinguishable  from  intending  to  commit 
it."  Cockburn,  C.  J.,  in  R.  v.  McPherson, 
Dears.  &  B.  C.  C.  197.] 

2  Evertsen  De  Jonge,  De  delictis  cont. 
Rempub.  Vol.  2,  p.  217.  But  there  must 
be  an  act  done ;  for,  Cogitationis  ptenam 
nemo  patitur.     Dig.  lib.  48,  tit.  19,  1.  18. 

•^  Rex  V.  Higgins,  2  East,  5,  17-21  ; 
Rex  V.  Vaughan,  4  Burr.  2494. 

*  Rex  I'.  Sutton,  2  Stra.  1074.  Cases 
may,  and  probably  do,  differ,  say  the  edi- 
tors of  Leading  Crim.  Cases,  in  a  note  to 
Rex  V.  Wheatly,  Vol.  1,  p.  6,  as  to  what 
is  a  sufficient  overt  act  to  constitute  the 
crime ;  but  all  decisions,  ancient  and  mod- 
em, recognize  the  principle,  that  a  criminal 
intent  alone,  imaccompanied  by  any  overt 
act,  is  not  punishable  by  the  common  law. 
We  say  cases  may  and  do  differ  in  their 
application  of  the  tjriuciple,  and  may  some- 


times be  in  direct  conflict  with  each  other, 
upon  the  proper  effect  of  some  particular 
conduct.  Thus,  in  Rex  v.  Sutton,  2  Stra. 
1074,  more  fully  reported  in  Cases  temp. 
Hardwicke,  370,  it  was  thought  that  having 
instruments  for  counterfeiting  coin  in  one's 
possession,  with  intention  to  coin  money 
and  to  pass  it  as  genuine,  was  a  sufficient 
act  to  be  indictable,  and  the  same  is  laid 
down  as  law  in  3  Greenl.  Ev.  §  2.  It  may 
be  that  the  decision  in  Strange  was  based 
upon  Stats.  8  &  9  Will.  3,  ch.  25,  which 
is  cited  in  2  \Vm.  Blackstone,  807,  and 
was  not  a  decision  at  common  law ;  but, 
whether  it  be  so  or  not,  the  modern  cases 
have  established  a  different  doctrine.  But 
all  agree  that  procuring  counterfeit  coin 
with  such  intent  is  an  act  indictable.  Rex 
V.  Fuller,  Russell  &  Ryan,  C.  C.  308  ;  Dug- 
dale  V.  Regina,  16  Eng.  Law  and  Eq.  R. 
380;  1  Pearce,  C.  C.  64;  1  EUis  &  Bl. 
435.  [See  also,  Regina  v.  Roberts,  33 
Eng.  Law  and  Eq.  R.  553.]  [*The  act 
must  be  one  immediately  and  directly 
tending  to  the  execution  of  the  principal 
crime,  and  committed  by  the  prisoner  under 
such  circumstances  as  that  he  has  the 
power  of  carrying  his  intention  into  exe- 
cution. Pollock,  C.  B.,  Keg.  v.  Taylor,  1 
F.  &  F.  5.] 

s  United  States  v.  Ravara,  2  Dall.  297. 

®  Commonwealth  v.  Whitehead,  2  Law 
Reporter,  148 ;  The  State  v  Farrier,  1 
Hawks,  487  ;  Rex  v.  Phillips,  6  East,  464. 
An  attempt  to  commit  suicide  is  a  mis- 
demeanor at  common  law.  Regina  v. 
Doody,  6  Cox,  C.  C.  463. 

T  The  State  v.  Avery,  7  Conn.  266. 


6  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PAET  V 

sons  non  compotes  mentis,  or  insane.  To  these  may  be  added  the 
class  of  persons  deficient  in  will,  that  is,  acting  under  the  constraint 
of  superior  force  or  the  potver  of  others,  and  not  of  their  own  free 
will  or  accord  ;  such  as  femes  covert,  acting  in  the  presence  or  by 
coercion  of  their  husbands,  persons  under  duress  per  minas,  and 
some  others.  For  in  such  cases  there  is  no  liberty  of  the  will ; 
and  without  the  consent  of  the  will,  there  is,  says  Lord  Hale,  no 
just  reason  to  incur  the  penalty  or  sanction  of  a  law  instituted  for 
the  punishment  of  crimes  or  offences.^ 

§  4.  With  respect  to  infants,  the  period  of  infancy  is  divided  by 
the  law  into  three  stages.  The  first  is  the  period  from  the  birth 
until  seven  years  of  age  ;  during  which  an  infant  is  conclusively/ 
presumed  incapable  of  committing  any  crime  whatever.  The  second 
is  the  period /rom  seven  until  fourteen.  Diiring  this  period  the  pre- 
sumption continues,  but  is  no  longer  conclusive,  and  grows  gradu- 
ally weaker  as  the  age  advances  towards  fourteen.  At  any  stage 
of  this  period  the  presumption  of  incapacity  may  be  removed  by 
evidence  showing  intelligence  and  malice  ;  for  malitia  supplet  mta- 
tem  ;  but  the  evidence  of  that  malice  which  is  to  supply  age,  ought 
to  be  strong  and  clear  beyond  all  reasonable  doubt.^  There  are, 
however,  some  exceptions  to  the  rule  governing  this  period  ;  for  a 
female.  Tinder  ten  years  of  age,  is  conclusively  presumed  incapable 
of  giving  consent  to  an  act  of  criminal  sexual  intercourse  with  her- 
self ;  and  a  male  under  fourteen  is  conclusively  presumed  incapa- 
ble of  committing  a  rape.^  The  third  commences  at  fourteen  ;  the 
presumption  of  incapacity  arising  from  youth  being  then  entirely 
gone,  and  all  persons  of  that  age  and  upwards  being  presumed,  in 
point  of  understanding,  capable  of  committing  any  crime,  until  the 
contrary  l)e  proved.  Thus,  from  seven  to  fourteen  the  burden  of 
proof  is  on  tlie  accuser  to  show  the  capacity  of  the  accused  ;  after 
that  period  it  is  on  the  accused  to  show  his  incaj)acity.'^     But  here, 

^  1  Hale,  P.  C.  14,  15.  with  an  intent  to  commit  a  rajic ;  for  the 

^  4  Bl.  Conini.   22,  23.     And  sec  The  reason  that  an  intent  to  <lo  an  act  does  not 

State;;.  CJnild,  5  Ilalst.  103;  Rex  i^.  Owen,  necessarily  imply  an  ability  to  accomplish 

4  C.  &  P.  23fi.    In  these  cases,  the  prosecu-  it.     Common\vealth  r.  Green,  2  Pick.  380. 

tormust  prove  two  points  of  fact:  first,  that  Sec  contra,  Hex  v.  Eldershaw,  3  C.  &  P. 

the  prisoner  committed  the  act  char<jed ;  396;    Regina    v.    Phillips,   supm ;    infru, 

and,  .secondly,  that  he  had  at  that  time  a  §21.5,  n. 

guiltv  knowled^rc  that  he  was  doing  wronj^.  "    ■»  Rex  r.  Owen,  4  C.  &  P.  23G  ;   1  Hawk. 

Ibid.'    Per  Littledale,  J.                               '  1>.  C.  eh.  1  ;  1  Hale,  P.  C.  eh.  3  ;  Broom's 

'^  4  HI.  ("onim.  212;  Rogina  i'.  Phillips,  Max.  ]>.   I4t>.     In  L'lilifornia  it  is  enacteil 

8  C.  &  P.  ".'ifi  ;   liegina  v.  Jordan,  9  C.  &  that  "  an  infant,  nnder  the  age  of  fourteen 

P.  118;  Regina  v.  Brimilow,  9  C.   &  P.  years,   shall   not   be  found  guilty  of  any 

366;  2  Moody,  C.  C.  122.    But  it  has  been  crime."     Cal.    Rev.    Stat.    1850,   ch.   99, 

held,  that  he  may  be  guilty  of  an  assault  §  4". 


PART  v.]  GENERAL  PRINCIPLES.  7 

also,  there  is  an  exception  ;  for  in  some  cases  an  infant  will  not  be 
held  liable  criminally  for  a  mere  nonfeasance,  where  the  ability  to 
perform  the  duty  enjoined  requires  the  command  of  his  property, 
which  is  not  under  his  control.^ 

§  5.  The  subject  of  insanity  has  been  briefly  treated  in  the  pre- 
ceding volume.^  But  it  is  proper  here  to  repeat,  that  though  the 
law,  in  its  charity,  always  presumes  men  innocent  until  they  are 
proved  guilty,  yet  it  is  also  a  presumption,  essential  to  the  safety 
of  society  as  well  as  founded  in  experience,  that  every  person,  is  of 
sound  mind  until  the  contrary  appears.  And  the  unsoundness  of 
mind  must  be  established  by  evidence  satisfactory  to  the  jury.^ 
On  questions  of  this  description,,  the  opinions  of  witnesses  who  have 
long  been  conversant  with  insanity  in  its  various  forms,  and  who 
have  had  the  care  and  superintendence  of  insane  persons,  are  re- 
ceived as  competent  evidence,  even  though  they  have  not  had  op- 
portunity to  examine  the  particular  patient,  and  observe  the  symp- 
toms and  indications  of  disease,  at  the  time  of  its  supposed  exist- 
ence. But  in  respect  to  the  manner  in  which  the  question  is  to 
be  propounded  to  witnesses  of  this  description,  an  important  dis- 
tinction is  to  be  observed.  They  are  not  to  be  asked  whether  the 
facts,  sworn  to  by  other  witnesses  who  have  preceded  them,  amount 
to  proof  of  insanity  ;  for  this,  as  has  been  observed  by  a  learned 
judge,  is  removing  the  witness  from  the  witness-box  into  the  jury- 
box.*  "  Even  where  the  medical  or  other  professional  witnesses 
have  attended  the  whole  trial,  and  heard  the  testimony  of  the 
other  witnesses  as  to  the  facts  and  circumstances  of  the  case,  they 
are  not  to  judge  of  the  credit  of  the  witnesses,  or  of  the  truth  of 
the  facts  testified  by  others.  It  is  for  the  Jury  to  decide  whether 
such  facts  are  satisfactorily  proved.  And  the  proper  question  to 
be  put  to  the  professional  witness  is  this  :  If  the  symptoms  and  in- 
dications testified  to  by  other  witnesses  are  proved,  and  if  the  Jury 

1  1  Hale,  P.  C.  20 ;  4  Bl.  Comm.  22  ;  1  the  barbarity  of  the  act  is  held  not  to 
Russ.  on  Crimes,  2.  The  liability  of  in-  aiford  a  presumption  of  insanity.  The 
fants  for  crime  is  fully  discussed  in  Rex  v.  State  v.  Stark,  1  Strobh.  479.  [Neither 
York,  1  Leading  Crim.  Cases,  68,  and  books  of  reputation  on  the  subject  of  in- 
note.  See  also  The  State  v.  Goin,  9  sanity,  whether  written  by  medical  men 
Humph.  175.  or  lawyers,  nor  published  statistics  of  in- 

2  See  ante,  Vol.  2,  §  372,  37.3.  sanity,  can    be   read    to  the  jury  unsup- 

3  If  the  fact  of  insanity  is  left  doubtful,  ported  by  oath.  Commonwealth  v.  Wil- 
upon  the  evidence,  the  court  ought  not  to  son,  1  Gray,  338.] 

instruct  the  jury  that  insanity  is  proved.  *  Per  Ld.  Brougham,  in  McNaughten's 

They   must  be" farther  satisfied  that  the  case,  Hans.  Pari.  Deb.,  Vol.  67,  p.  728; 

prisoner  was  insane,  at  the  time  of  the  act  10  Clark  and  Fin.  200-212;  Opinion  on 

done;  mere  loss  of  memory  not  being  suf-  Insane  Criminals,  8  Scott,  N.  R.  595. 
ficient.     And  if  the  homicide  is  proved, 


8  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

are  satisfied  of  the  truth  of  them,  whether,  in  their  opinion,  the 
party  was  insane,  and  what  was  the  nature  and  character  of  that 
insanity  ;  what  state  of  mind  did  they  indicate  ;  and  what  they 
would  expect  would  be  the  conduct  of  such  a  person  in  any  sup- 
posed circumstances."  ^ 

[*  The  most  convenient  mode  of  putting  the  inquiry,  and  the 
least  exceptionable  one,  in  our  judgment,  is  to  inquire  what  state 
of  mind  is  indicated  by  certain  facts,  assumed,  or  testified  by  cer- 
tain witnesses,  or  in  any  other  hypothetical  form  of  bringing  the 
point  of  inquiry  to  the  mind  of  the  witness.  If  the  witness  says 
the  facts  assumed  indicate  mental  unsoundness,  he  may  be  in- 
quired of  in  regard  to  the  state  and  degree  of  mental  unsoundness 
thus  indicated,  and  how  far  it  will  disqualify  the  person  for  busi- 
ness, or  render  him  unconscious  of  the  nature  of  his  conduct.  He 
should  also  be  inquired  of,  whether  these  facts  are  explainable  in 
any  other  mode  except  upon  the  theory  of  insanity,  and  with  what 
degree  of  certainty  they  indicate  the  inference  drawn  by  the 
witness.^] 

§  6.  In  regard  to  insanity  from  drunkenness,  we  have  already 
adverted  to  the  distinction  between  criminal  acts,  the  immediate 
residt  of  the  fit  of  intoxication,  and  committed  ivldle  it  lasts,  and 
acts,  the  result  of  insanity  remotely  produced  by  previous  habits 
of  gross  intemperance  ;  the  former  being  punishable  and  the  lat- 
ter not.^  It  may  here  be  added,  that  drunkenness  may  be  taken 
into  consideration  in  cases  where  what  the  law  deems  sufficient 
provocation  has  been  given  :  because  the  question,  in  such  cases, 
is,  whether  the  fatal  act  is  to  be  attributed  to  the  passion  of  anger 
excited  by  the  previous  provocation  ;    and  this  passion  is  more 

1  Per  Shaw,  C.  J.,  in  Common-wealth  Leading  Crim.  Cases,  11.3,  and  note;  The 

V.    Rogers,  9    Met    500,505;    1    Leading  United    States    v.    Forbes,    Crabbc,    558. 

Crim. 'erases,  87,  and  note.     And  see  nn^e,  [*  People    v.    Rogers,     18    N.    Y.    K.    9.] 

Vol.  2,  §.37.3,  and  note;  Regina  w.  Stokes,  ["The  rule  of  law  is,  that  although  the 

3  C.  &  k.  185;  Regina  v.  Barton,  3  Cox,  use  of  intoxicating  li(iuors  does  to  some 

C.  C.  275  ;  Regina  u.  Layton,  4  Cox,  C.  C.  extent  blind  tlie  reason  and  exasperate  the 

149  ;  Freeman  r.  Tin-.  People,  5  Deiiio,  29  ;  jiassions,  yet  as  a  man  voluntarily  brings 

The  State  v.   Spencer,  1   Zabriskie,  19G;  it  upon  himself,  he  cannot  use  it  as  an 

Commonwealth   v.   Mosler,  4   Barr.   264.  excuse  or  justification,  or  extenuation  of 

[U.  S.  V.  McGlue,  1  Curt.  C.  C.  1  ;  Wood-  crime.     A  num,  becau.se  he  is  intoxicated, 

bury  V.  Obear,  7  Gray,  457  ;  Baxter  v.  Ab-  is  not  deprived  of  any  legal  advantage  or 

bott,  lb.  71.     Sec  an  article  on  the  subject  protccticm  ;  but  he  cannot  avail  himself  of 

of  medical   testimony,  22   Law  Reporter,  his  intoxication  to  exem])t  him  from  any 

129.1  legal  resi)onsibility  wliich  would  attacli  to 

[*'^  Redfield  on  the  Law  of  Wills,  Part  him  if  solier."     Per  Siuiw,  C.  J.,  in  C'om- 

1.  p.  149.]  monwcalth  v.  Hawkins,  3  Gray,  4f)r).     Sec, 

^  Ante,  Vol.  2,  §  374.  And  see  The  also,  Iluile  j;.  The  State,  11  Humph.  154.] 
United  States  v.   Drew,  5  Mason,  28;   1 


PART  v.] 


GENERAL   PRINCIPLES. 


easily  excited  in  a  man  when  intoxicated  than  when  he  is  sober. 
So,  where  the  question  is,  whether  words  have  been  uttered  with  a 
deliberate  purpose,  or  are  merely  low  and  idle  expressions,  the 
drunkenness  of  the  person  uttering  them  is  proper  to  be  consid- 
ered.^ But  where  there  is  a  previous  determination  to  resent  a 
slight  affront  in  a  barbarous  manner,  the  state  of  intoxication  in 
which  the  prisoner  was  when  he  committed  the  deed  ought  not  to 
be  regarded,  for  it  furnishes  no  excuse.^  And  it  seems,  also,  that 
if  a  person,  by  the  unskilfulness  of  his  physician,  or  the  contriv- 
ance of  evil-minded  persons,  should  eat  or  drink  that  which  causes 
frenzy,  this  puts  him  into  the  general  condition  of  an  insane  per- 
son, and  equally  excuses  him.^ 

§  7.  As  to  persons  acting  under  the  constraint  of  superior  poiver, 
and  therefore  not  criminally  amenable,  the  principal  case  is  that 
0^  a  feme  covert ;  who  is  considered  by  the  law  as  so  far  under  the 
power  and  authority  of  her  husband,  that  if  she  commit  any  crime 
by  his  command  or  coercion,  except  those  of  treason  and  homicide 
(and  perhaps  some  others),  she  is  not  held  guilty.*     Whether, 


1  [Eastwood  V.  The  People,  3  Parker, 
Crim.  K.  25,  4  Kern.  526 ;  Kogers  v.  The 
People,  Id.  632.  In  these  cases  evidence 
of  drunkenness  was  admitted  in  trials  for 
murder  on  the  question  of  malice.] 

-  Rex  V.  Thomas,  7  C.  &  P.  817,  per 
Parke,  B.  And  see  Retina  v.  Cruse,  8  C. 
&  P.  546 ;  Regina  v.  Monkhouse,  4  Cox, 
C.  C.  55 ;  Marshall's  case,  1  Lewin,  C.  C. 
76  ;  Regina  v.  Moore,  3  C.  &  K.  319  ;  The 
State  V.  McCant's,  1  Speers,  384 ;  Corn- 
well  V.  The  State,  Mart.  &  Yerg.  157; 
Swan  V.  The  State,  4  Humph.  136  ;  Haile 
V.  The  State,  11  Humph.  154;  1  Russ.  on 
Crimes,  8 ;  3  Amer.  Jur.  1  -  20  ;  Rex  v. 
Meakin,  7  C.  &  P.  297 ;  Rex  v.  Carroll, 
Id.  145 ;  The  United  States  v.  Drew,  1 
Leading  Crim.  Cases,  113,  and  note. 

'^  1  Hale,  P.  C.  32 ;  Park,  J.,  Pearson's 
case,  2  Lewin,  C.  C.  144 ;  Russ.  Crim. 
Law,  2. 

*  Bl.  Comm.  28,  29 ;  1  Hale,  P.  C.  45, 
47,  434.  Lord  Hale,  in  the  first  of  the 
places  cited,  excepts  only  treason  and  mur- 
der, in  "  regard  of  the  heinousness  of  those 
crimes";  in  the  second,  he  excepts  "trea- 
scii,  rmirdtr,  or  homicide" ;  in  the  third,  he 
excepts  treason,  murder,  and  mansknu/htfr. 
Lord  Bacon  excepts  treason  only ;  saying 
that  the  wife  is  excused  in  cases  of  felon  i/. 
Bac.  Max.  p.  26,  27,  32;  Reg.  5,  7."  Aiid 
this  agrees  with  the  case  in  27  Ass.  40, 
cited  in  Bro.  Abr.  tit.  Corone,  pi.  108; 
where  it  was  held,  that  a  woman  arraigned 
of  felony,  could  not  be  adjudged  guilty ;  the 


act  being  done  by  command  of  her  hus- 
band. Blackstone  states  the  exception  to 
be  not  only  of  treason,  but  of  "  crimes  that 
are  7nula  in  se,  and  prohibited  by  the  law 
of  nature,  as  murder  and  the  like."  4  Bl. 
Comm.  29.  Mr.  Russell  adopts  this  ex- 
ception, and  extends  it  to  robbery  also. 

1  Russ.  on  Crimes,  18.  And  see  Rex  v. 
Stapleton,  Jebb,  C.  C.  93.  Mr.  Starkie 
states  the  exception  as  extending  not  only 
to  treason,  murder,  and  manslaughter,  but 
to  assaults  and  batteries,  and  "  any  other 
forcible  and  violent  misdemeanors,  com- 
mitted jointly  by  the  husband  and  wife." 

2  Stark.  Evid.  399,  cited  with  approbation 
by  the  Recorder  of  London,  in  Regina  v. 
Manning,  2  C.  &  K.  903,  n.  And  see, 
accordingly,  Purcell  on  Crim.  PI.  and 
Evid.  p.'  16,  17 ;  Whart.  Amer.  Crim. 
Law,  p.  54  C2d  ed.).  But  in  a  case  before 
Burrough,  J.,  where  a  wife  was  indicted 
jointly  with  her  husband  for  robbery,  he 
directed  the  jury  to  acquit  her  on  the 
ground  that  the  law  conclusively  pre- 
sumed that  it  was  done  by  coercion  of 
the  husband.  1  C.  &  P.  118,  note.  In 
Ohio,  it  has  been  held,  that  coercion  by  the 
husband  is  to  be  presumed  in  all  crimes 
under  the  degree  of  murder,  in  the  com- 
mission of  which  she  joins  with  him.  The 
State  V.  Davis,  15  Ohio,  72.  Whether  she 
is  entitled  to  the  benefit  of  this  presump- 
tion, in  the  case  of  inflicting  an  injury 
dangerous  to  life,  with  intent  to  murder, 
which  is  made  a  capital  offence  by  Stat.  1 


10  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PAET  V 

where  the  act  is  done  hj  the  Jiushand  and  wife  jointly,  his  coercion 
is  conclusively  presumed  by  the  law,  or  is  only  to  be  inferred 
primd  facie,  and  until  the  contrary  is  shown,  is  a  point  not  perfect- 
ly clear.  In  earlier  times,  it  seems  in  such  cases  to  have  been  the 
conclusive  presumption  of  law,  that  the  wife  was  under  the  hus- 
band's coercion.  So  Blackstone  appears  to  have  regarded  it,  re- 
ferring to  Lord  Hale,  and  to  the  laws  of  King  Ina,  the  West  Saxon. ^ 
Lord  Hale,  in  the  place  cited,  is  express,  that  if  the  wife  commit 
larceny  by  coercion  of  the  husband,  she  is  not  guilty  ;  adding, 
that  according  to  some,  such  is  the  presumption  if  the  act  be  done 
by  command  of  the  husband,  which,  he  says,  seems  to  be  law  if 
the  husband  be  present ;  for  which  he  refers  to  the  same  law  of 
Ina,^  and  to  Brooke.^  And  so  it  was  held  in  16  Car.  2,  by  all  the 
judges  present,  in  a  case  of  burglary,  committed  by  the  wife  joint- 
ly with  her  husband.'^  Mr.  Starkie  adopts  the  same  conclusion, 
that  the  presumption  of  law  is  imperative,  in  all  cases  where  the 
husband  is  present  and  participating  in  the  act.^  But  Lord  Hale, 
in  another  part  of  his  work,^  expresses  his  own  opinion  that  the 
presumption  of  coercion  is  not  conclusive  ;  but  that,  "  if  upon  the 
evidence  it  can  clearly  appear  that  the  wife  was  not  drawn  to  it 
by  the  husband,  but  that  she  was  the  principal  actor  and  inciter 
of  it,  she  is  guilty  as  well  as  the  husband."  The  law  was  so  held 
by  Thompson,  B.,  in  a  case  before  him,'^  on  the  authority  of  this 
opinion  of  Lord  Hale  ;  and  Mr.  Russell,  from  these  and  some  other 
modern  authorities,  has  deduced  the  rule  to  be,  that  if  a  felony  be 
shown  to  have  been  committed  by  the  wife,  in  the  presence  of  the 

Vict.   c.  85,  was  doubted,    in   Regina  v.  crcion  of  her  husband,  or  even  in  liis  prcs- 

Cruse,  8  C.  «&  P.  541.     On  the  ])rinciple  ence;  and  accordingly  discharpcd  her. 

of  presumed  coercion   by  the  ])resence  of  i  4  Bl.  Conim.  28,  29 ;  1  Hale,  P.  C.  45. 

the  husband,  the  wife  has  been  htild  not  -   Qnonia'ii  ipsa   (scil.  feeniina)  suprn-iori 

liable  for  hirceny  ;  Rex  y.  Knight,  1    C.  &  suo  olicdire  debet.     LL.  In;e,  57. 

P.    IIG;    Commonwealth    v.    Trimmer,  1  '^  Brooke  states  the  case,  from  27  Ass. 

Mass.  476  ;  Anon.  2  East,  P.  C.  559 ;  re-  40,   of  a  wonum  indicted  of  felony,   and 

ceiving   stolen   goods,    Rck  i'.  Archer,   1  held  not  guilty,  because  it  was  done  by 

Moody,  C.   C.   143  ;    uttering  base   coin,  command  of  her  husband ;  adding,  ratio 

Connolly's  case,  2  Lewiu,  C.  C.  229;  Rex  videtur  ceo  que  le  le/j  tnlend'  (pie  le  feme, 

V.  Price,'  8  C.  &  P.  19;  and  burglary,  J.  que  est  sub  potcstate  viri,  ne  osa  contra 

Kelyng,  p.  31.     See  further,  1   Russ.  on  dire  son  barron.     Bro.  Ahr.  ('oronc,  pi. 

Crimes,    18,   22,   with    the   notes   of  Mr.  108. 

Greaves;  Commonwealth  v.  Neal,  10  Mass.  *  J.  Kelyng,  p.  31. 

152  ;   1  Leading  Crim.  Cases,  76,  and  note.  <•  2  Stark.  Kvid.  399  ;  Id.  337.     And  so 

In   Comirionwcalth  v.  Neal,  siiimi,  where  it  was  held  by  Burrough,  J.,  in   the  case 

the  biishaiid  and  wife  were  jointly  indicted  cited  in   a  preceding  note  to  this  section, 

for  an  assault  and  battery,  it  was  sjiecially  from  1  C.  &  P.  118,  note. 

found  that  she  couiinitted  it  in  coinjiany  ''   1  Hale,  P.  C.  516. 

with   and   commanded   by  her   husband;  ^  Rex  »>.  Hughes,  Lancaster,  Lent  Ass. 

and  the  court  held,  that  she  was  not  guilty  1813;  2  Lewin,  C.  C.  229. 

of  any  civil  oUeiiee,  committed  by  the  co- 


PART  v.]  GENERAL    PRINCIPLES.  11 

husband,  the  prhnd  facie  presumption  is,  that  it  was  done  by  his 
coercion  ;  but  such  presumption  may  be  rebutted  by  proof  that  the 
wife  was  the  more  active  party,  or  by  showing  an  incapacity  in  the 
husband  to  coerce.^  The  attention  of  the  Jury  must  be  distinctly 
directed  to  the  inquiry,  and  their  opinion  taken  upon  the  fact  of 
coercion  ;  and  if  this  be  not  found,  she  will  be  entitled  to  an  ac- 
quittal.2  In  all  other  cases,  except  where  the  husband  was  pres- 
ent, his  command  or  coercion  must  be  proved.^ 

§  8.  In  regard  to  persons  under  duress  per  minas,  the  rule  of 
law  is  clear,  that  "  no  man,  from  a  fear  of  consequences  to  him- 
self, has  a  right  to  make  himself  a  party  to  committing  mischief  on 
mankind."  *  But  though  a  man  may  not,  for  any  peril  of  his  own 
life,  justifiably  kill  an  innocent  person,  yet,  where  he  cannot  other- 
wise escape,  he  may  lawfully  kill  the  assailant.^  And  though  the 
fear  of  destruction  of  houses  or  goods  is  no  excuse  in  law  for  a 
criminal  act,  yet  force  upon  the  person,  and  present  fear  of  death, 
may,  in  some  cases,  excuse  an  act  otherwise  criminal,  while  such 
force  and  fear  continue  ;  as,  for  example,  if  one  is  compelled  to 
join  and  remain  with  a  party  of  rebels.^ 

§  9.  It  may  be  added,  that  where  an  idiot,  or  lunatic,  or  infant 
of  tender  age,  and  too  young  to  be  conscious  of  guilt,  is  made  the 
instrument  of  mischief  by  a  person  of  discretion,  the  latter  alone  is 
guilty,  and  may  be  indicted  and  punished  as  the  principal  and  sole 
offender.  And  so  is  the  law,  if  one  by  physical  force  and  violence 
impel  another  involuntarily,  against  a  third  person,  thereby  doing 
to  the  person  of  the  latter  any  bodily  harm.'  And,  generally, 
where  one  knowingly  does  a  criminal  act,  by  means  of  an  innocent 


1  1  Russ.  on  Crimes,  22.     Mr.  Greaves,  See  also  Commonwealth  v.  Neal,  10  Mass. 

his  learned  editor,  collects  from  the  cases  152  ;   1  Leading  Crim.  Cases,  76,  and  note, 

the  following  propositions  :  1st,  that  an  in-  where  the  law  upon  the  responsibility  of 

dictment  against  husband  and  wife,  jointly,  married  women  for  crime  is  fully  stated. 

is   not   objectionable   on    demurrer  ;    nor,  ^  Rex  v.  Archer,  1  Moody,  C.  C.  143. 

2dly,  is  their  conviction  bad  on  error,  or  ^  [Commonwealth  v.  Murphy,  2  Gray, 

in  arrest  of  judgment;    3dly,  that  if  he  510.] 

were  present,  coercion  is  to  be  presumed,  *  Hegina  v.  Tyler,  8  C.  &  P.  616,  per 

and  the  Jury  must  be  directed  to  acquit  Ld.  Denman.     [See  People  i'.  Stonecifer,  6 

her;  unless,  4thly,  it  be  proved,  either  that  Cal.  405  ;  Mitchell  v.  State,  22  Geo.  211.] 

she  was  the  instigator  or  more  active  party,  °  4  Bl.  Coram.  30;  1  Hale,  P.  C.  51. 

or  that  he  was  physically  incapable  of  co-  ^  Foster,  p.  14.     The  rule,  or  condition 

ercing  her.    Ibid.," note  (g).    And  see,  ace.  laid  down  in  Sir  John  Oldcastle's  case,  is, 

Regina  v.  Cruse,  8  C.  &  P.  541  ;  2  IMoody,  that  they  joined  pro  timore  mortis,  et  quod 

C.  C.  63  ;  Rex  v.  Dicks,  1  Russ.  on  Crimes,  recesserunt  quam  cito  potuerunt.     1  Hale, 

19 ;  Archb.  Crim.  PI.  and  Evid.  17  ;  Whart.  P.  C.  50. 

Am.  Crim.  Law,  54  (2d  ed.) ;  Rex  ?-.  Arch-  ■?  Plowd.  19  ;  1  Hale,  P.  C.  434 ;  1  Rus. 

er,  1  Moodv,  C.  C.  143 ;  Purcell,  Crim.  PI.  on  Crimes,  17,  18. 
and  Evid.  15;  Bract.  Lib.  3,  ch.  32,  §  10. 


12 


LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


agent,  the  employer,  and  not  the  innocent  agent,  is  the  person  ac- 
countable for  the  act.i 

[§  9  a.  In  regard  to  the  criminal  liability  of  corporations,  the  re- 
sult of  the  cases  is,  "  that  a  corporation  may  be  indicted  for  a  non- 
feasance, in  not  carrying  out  the  provisions  either  of  their  consti- 
tuting statute,  or  of  their  charter,  or  for  a  misfeasance,  consisting 
of  an  offence  at  common  law,  not  being  treasonable,  felonious,  or 
attended  with  violence,  or  for  an  offence  against  a  statute,  or 
against  a  prescriptive  or  chartered  duty."  ^  But  it  does  not  follow, 
because  a  corporation  is  liable  for  the  misfeasance,  that  the  indi- 
viduals who  commit  the  act  are  not.'^] 

§  10.    It  is  a  cardinal  doctrine  of  criminal  jurisprudence,  de- 


1  Regina  v.  Bleasdale,  2  C.  &  K.  768, 
per  Erie,  J. ;  Rcgina  v.  Williams.  Id.  51 ; 
Commonwealth  v.  Hill,  11  Mass.  136. 

-  Grant  on   Corporations   (London  ed. 
1850),  284  ;  Regina  v.  The  Great  North  of 
England   Railway  Co.,  9   Q.  B.  315;    1 
Leading    Grim.    Cases,    134,    and    note ; 
Regina  v.   Birmingham    and    Gloucester 
Railway  Co.,  3  Q.'^B.  223;  5  Jur.  40;  1 
Galo  &  Dav.  457  ;   1  Leading  Crim.  Cases, 
127  ;     Commonwealth    v.    New    Bedford 
Bridge  Co.,  2  Gray,  339 ;    The   State^  v. 
Morris   and  Essex    Railroad   Co.,  3   Za- 
briskie,  360;    [State  v.  Vermont   Central 
Railroad,  1  Wms.  Vt.  103.]     In  England, 
it  has  recently  been  held,  that  a  corpora- 
tion could  not  be  indicted  for  a  violation 
of  Stat.  59  Geo.  3,  ch.  69,  against  enlisting 
English  soldiers  in  foreign  service.     King 
of  the  Two  Sicilies  v.  Wilcox,  1  Simons, 
N.  S.  335.     In  America,  it  has  been  held, 
thai  a  corporation  cannot  be  indicted  for 
a  misfeasance.     In  Maine,  it  was  decided 
that  an  indictment  will  not  lie  against  a 
corporation  for  a  nuisance  in  erecting  a 
dam  across  a  river;  The  State  v.  Great 
Works  Milling  and  Manuf.  Co.,  20  Maine, 
41  ;    and    in    Virginia,    for   oljstructing   a 
highway ;    Commonwealth    v.    Swift  Run 
Gap  Turnpike  Co.,  2  Va.  Cases.  362.     In 
Rcgina  v.  The   Great  North  of  England 
Railway  Co.  ubi  supra,  Lord  Denman,  C.  J., 
said:   ""Many  occurrences  may  be  easily 
conceived,  full  of  annoyance  and  danger  to 
the  public,  and  involving  blame  in  some 
iuilividual  or  some  corjioration  of  which 
the  nu)st  acute  jxTson  could  not  clearly 
define  the  cause,  or  a.scribo  tlicm  with  more 
correctness  to  mere  negligence  in  providing 
safeguards,  or  to  an  act  rendered  imjirop'/r 
by  nothing  but  the  want  of  safeguards.    If 
A.   is   authorized   to   make  a  bridge  with 
parapets,  but  makes  it  without  them,  does 
the  offence  consist  in  the  construction  nf 
the  unsecured  bridge,  or  in  the  neglect  to 


secure  it  1  But  if  the  distinction  were  al- 
ways easily  discoverable,  why  should  a  cor- 
poration be  liable  for  the  one  species  of 
offence  and  not  for  the  other  ?  The  start- 
ling incongruity  of  allowing  the  exemp- 
tion is  one  strong  argument  against  it. 
The  law  is  often  entangled  in  technical 
embarrassments ;  but  there  is  none  here. 
It  is  as  easy  to  charge  one  person,  or  a 
body  corporate,  with  erecting  a  bar  across 
a  public  road  as  with  the  non-repair  of  it; 
and  they  may  as  well  be  compelled  to  pay 
a  fine  for  the  act  as  for  the  omission. 
Some  dicta  occur  in  old  cases  :  '  A  corpo- 
ration cannot  be  guilty  of  treason  or  felony.' 
It  might  be  added,  '  of  perjury,  or  otiences 
against  the  person.'  The  Court  of  Com- 
mon Pleas  lately  held,  that  a  corporation 
might  be  sued  in  trespass  ;  Maund  v.  i\Ion- 
mouthshire  Canal  Co.,  4  M.  &  G.  452  ;  but 
nobody  has  sought  to  fix  them  with  acts 
of  immorality.  These  plainly  di'rivc  their 
character  from  the  corrupted  mind  of  the 
person  committing  them,  and  are  viola- 
tions of  the  social  duties  that  belong  to 
men  and  subjects.  A  corporation,  which, 
as  such,  has  no  duties,  cannot  lie  guilty  in 
those  cases ;  but  they  may  be  guilty  as  a 
body  corporate  of  commanding  acts  to  be 
done  to  the  nuisance  of  tjie  community  at 
large.  The  late  case  of  Rc;:ina  v.  Bir- 
mingham and  Gloucester  Railway  Co.,  3  Q. 
B.  223,  was  confined  to  the  state  of  things 
then  before  the  Court,  which  amounted  to 
nonfeasance  only;  but  was  by  no  means 
intended  to  deny  the  liability  of  a  corpora- 
tion for  a  misfeasance."  [A  corjioration 
mav  be  sued  civillv  for  assault  and  battery. 
E.  C.  Railway  i\  Broom,  6  Exch.  314.] 

8  See  Regina  i:  The  Great  North  of 
Enti-land  Railway  Co.  ubi  su])r(i ;  Regina  v. 
Scott,  3  Q.  B.  543  ;  Kane  v.  The  Pcoi)le,  3 
Wend.  363  ;  Edge  c  The  Commonwealth, 
7  llarr.  275. 


PAKT  v.]  GENERAL   PRINCIPLES.  13 

clared  in  the  Constitution  of  the  United  States,  that  the  accused 
has  a  right  ^^  to  he  informed  of  the  nature  and  cause  of  the  accusa- 
tion "  against  him  ;  or,  as  it  is  expressed  in  other  constitutions,  to 
have  the  offence  '■'•fully  and  'plainly^  substantially  and  formally  de- 
scribed to  him."  This  is  the  dictate  of  natural  justice  as  well  as  a 
doctrine  of  the  common  law.  The  description,  whether  in  an  in- 
dictment, or  information,  or  other  proceeding,^  ought  to  contain 
all  that  is  material  to  constitute  the  crime,  set  forth  with  precision, 
and  in  the  customary  forms  of  law.  And  if  more  is  alleged  than 
is  necessary,  yet  if  it  be  descriptive  of  the  offence,  it  must  be 
proved.  Thus,  though  in  an  indictment  for  arson  it  is  sufficient 
if  it  appear  that  the  house  was  another's  and  not  the  prisoner's, 
yet  if  the  ownership  be  alleged  with  greater  particularity,  the  alle- 
gation must  be  precisely  proved,  for  it  is  descriptive  of  the  offence. 
This  rule  is  deduced  from  a  consideration  of  the  purposes  of  an 
indictment ;  which  are,  first,  to  inform  the  accused  of  the  leading 
grounds  of  the  charge,  and  thereby  enable  him  to  make  his  de- 
fence ;  secondly,  to  enable  the  court  to  pronounce  the  proper  judg- 
ment affixed  by  law  to  the  combination  of  facts  alleged  ;  and, 
thirdly,  to  enable  the  party  to  plead  the  judgment  in  bar  of  a  sec- 
ond prosecution  for  the  same  offence.^ 

§  11.  It  is  also  a  general  rule  of  criminal  law  in  the  United 
States,  that  the  -party  accused  is  entitled.,  as  of  common  right,  to  be 
confronted  ivith  the  witnesses  against  him.  This  right  is  declared  in 
the  Constitution  of  the  United  States  ;  and  is  also  recognized  in 
the  constitutions  or  statutes  of  nearly  all  the  States  in  the  Union  ; 
but  in  England  it  has  not  always  been  conceded.^  Sir  Walter 
Raleigh,  on  his  trial,  earnestly  demanded  "  that  he  might  see  his 
accuser  face  to  face  "  ;  protesting  against  the  admission  of  a  state- 
ment in  the  form  of  the  substance  of.  an  examination,  taken  in  his 
absence  ;  but  this  was  denied  him,  and  the  examination  was  ad- 
mitted. Informations  of  witnesses,  against  a  person  charged  with 
felony,  taken  by  a  justice  of  the  peace,  or  a  coroner,  under  the 
statutes  of  Philip  and  Mary,  and  subsequent  statutes  on  the  same 
subject,  are  admitted  as  secondary  evidence  on  the  trial  of  the  in- 

1  In  preliminary  proceedings  before  Jus-  ^  Commonwealth   v.    Wade,    17    Pick. 

tices  of  the  Pence,  in  cases  in  which  their  395,  399.     And  see  ante.   Vol.   1,   §  65  ; 

jurisdiction  is  initial  only,  less  precision  is  The  People  v.  Stater,  5  Hill  (N.  Y.  Rep.), 

required  in  charging  the  offence  than  in  an  401. 

indictment.     Commonwealth   v.   Phillips,  »  2  Hawk.  P.  C.  b.  2,  ch.  46,  §  9. 
16  Pick.  211;    Commonwealth  »;.  Flynn, 
3  Cush.  523. 


14  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

dictment,  by  force  of  those  statutes.  And  though  at  this  day  it  is 
deemed  requisite,  upon  the  language  of  the  statute,  that  informa- 
tions before  a  justice  of  the  peace  should  be  taken  in  the  presence 
of  the  prisoner,!  yet  formerly  it  was  held  otherwise  ;2  and  infor- 
mations returned  by  the  coroner  are  still  by  some  judges  held 
admissible,  though  taken  in  the  prisoner's  absence.^  Statutes  of 
similar  import  have  been  enacted  in  several  of  the  United  States  ;  * 
but  it  is  conceived  that,  under  the  constitutional  provisions  above 
mentioned,  no  deposition  would  be  deemed  admissible  by  force 
of  those  statutes,  unless  it  were  taken  wholly  in  the  prisoner's 
presence,  in  order  to  afford  him  the  opportunity  to  cross-examine 
the  witnesses  ;  nor  then,  except  as  secondary  evidence,  the  de- 
ponent being  dead  or  out  of  tlie  jurisdiction  ;  or  to  impeach  his 
testimony  given  orally  at  the  trial.^  Depositions  are  in  no  case 
admissible  in  criminal  proceedings,  unless  by  force  of  express  stat- 
utes, or,  perhaps,  by  consent  of  the  prisoner  in  open  court.^ 

§  12.  The  ansiver  to  a  criminal  prosecution  in  the  courts  of 
common  law,  where  the  trial  is  upon  the  merits  of  the  case,  is, 
that  the  party  is  not  guilty  of  the  offence  charged  ;  no  other  form 
of  issue  being  required.  This  plea  involves  a  denial  of  every  ma- 
terial fact  alleged  against  him,  and  of  course,  according  to  the 
principles  already  stated,^  the  prosecutor  is  bound  affirmatively  to 
prove  the  whole  indictment ;  or,  as  it  has  been  quaintly  expressed, 
to  prove  Quis,  qua7ido,  ubi,  quod,  cujus,  quomodo,  quare.  The  alle- 
gations of  time  diXidi  place,  however,  are  not  material  to  be  proved, 
as  laid,  except  in  those  cases  where  they  are  essential  either  to 
the  jurisdiction  of  the  court,  or  to  the  specific  character  of  the 
offence.^     Thus,  for  example,  where  the  night  time  is  material  to 

1  Rex  V.  Paine,  5  Mod.  163;  2  Hawk.  SUrkie.  See  2  Stark.  Ev.  277-279  (6th 
P.  C.  b.  2,  ch.  46,  §  10 ;  Rex  v.  Eriswell,  3  Am.  cd.).  And  see  2  Russ.  on  Crimes, 
T.  R.  722,  7:i3  ;  Rex  v.  Errinuton,  2  Lewin,     892. 

C.  C.  142  ;  Rex  v.  Woodeock,  1  East,  P.  C.  *  See  ante.  Vol.  1,  §  224. 

356  ;  Rex  v.  Smith,  2  Stark.  R.  208.    This  ^  gge  Bostick  v.  The  State,  3  Humph, 

last  case  was  fully  reviewed,  and  somewhat  344  ;  The  State  v.  Bowcn,  4  McCord,  254  ; 

questioned,  in  Regina  v.  Walsh,  5  Cox,  The  State  v.  Valentine,  7  Ired.  225  ;  N.  Y. 

C.  C.  115.  Rev.  Stats.  Vol.  2,  p.  794,  §  14.     [For  the 

2  Trials  per  Pais,  462.  And  see  2  Hale,  rule  in  Massaehusetts,  see  Gen.  Stats. 
P.  C.  284.  (1860),  ch.   170,  §  30.] 

8  Rex  V.  Thatcher,  T.  Jones,  53.     The  ^  Dominges  v.  The  Sto*e,  7  Sm.  &  M. 

reason  given  is,  that  they  arc  fjncisi  inquests  475  ;  McLane  v.  Georgia,  4  Georgia,  335. 

of  office,  and  \ydrt  of  the  ])roceedings  in  the  In  several  of  the  United  States,  depositions 

case.     Il>id.     J.  Kely,  55;  3  T.  R.  722;  may,  in   certain   contingencies,  be   taken 

Sills  V.  Brown,  9  C.  &  P.  601 ;  Bull.  N.  P.  and  used  in  criminal  as  in  civil  cases.    See 

242;  Rex  v.  Gradv,  7  C.  &  P.  6.50;  Rex  uute,  Vol.  1,  §321. 

V.  Coveney,  Id.  667;  2  Phil.  Ev.  69,  70  '  Sec  mitr,  Vol.  1,§  74-81. 

(9th  ed.).     The  unsoundness  of  this  dis-  *  In  Massachusetts,  in  a  recent  case,  it 

tinctiou  is   convincingly   shown    by   Mr.  was  held,  that  on  the  trial  of  an  indictment 


PART  v.]  GENERAL   PRINCIPLES.  15 

the  crime,  as  in  burglary,  or,  in  some  States,  one  species  of  arson, 
it  must  be  strictly  proved.  So,  in  prosecutions  for  violation  of  the 
Lord's  day,  and  several  other  cases.  So,  where  the  place  is  stated 
as  matter  of  local  description,  it  must  be  proved  as  laid  ;  as  ia 
indictments  for  forcible  entry,  or  for  stealing  in  a  dwelling-house, 
and  the  like  ;  or,  where  a  penalty  is  given  to  the  poor  of  the  town 
or  place  where  the  offence  was  committed  ;  or,  where  a  town  is 
indicted  for  neglecting  to  repair  a  highway  within  its  bounds.  But 
in  all  cases  it  is  material  to  prove  that  the  oJEfence  was  committed 
within  the  county  where  it  is  laid  and  where  the  trial  is  had,  the 
jurisdiction  of  the  court  and  jury  being  limited,  in  criminal  cases, 
to  that  county.^ 

§  13.  Another  cardinal  doctrine  of  criminal  law,  founded  in 
natural  justice,  is,  that  it  is  the  intention  with  which  an  act  was 
donCj  that  constitutes  its  criminality.  The  intent  and  the  act  must 
both  concur,  to  constitute  the  crime.^  Actus  nonfacit  reum,  nisi 
mens  sit  rea.^  And  the  intent  must  therefore  be  proved,  as  well  as 
the  other  material  facts  in  the  indictment.  The  proof  may  be 
either  by  evidence,  direct  or  indirect,  tending  to  establish  the  fact ; 
or  by  inference  of  law  from  other  facts  proved.  For  though  it  is 
a  maxim  of  law,  as  well  as  the  dictate  of  charity,  that  every  person 
is  to  be  presumed  innocent  until  he  is  proved  to  be  guilty  ;  yet  it 
is  a  rule  equally  sound,  that  every  sane  person  must  be  supposed 
to  intend  that  which  is  the  ordinary  and  natural  consequence  of 
his  own  purposed  act.  Therefore,  "  where  an  act,  in  itself  indif- 
ferent, becomes  criminal  if  done  with  a  particular  intent,  there 
the  intent  must  be  proved  and  found  ;  but  where  the  act  is 
in  itself  unlauful,  the  proof  of  justification  or  excuse  lies  on  the 

charging  the  defendant  with  being  a  com-  committed  at  an  impossible  time,  as,  for 
mou  seller  of  intoxicating  liquors  on  a  example,  on  a  future  day,  is  fatal  to  the 
particular  day,  evi'dence  of  sales  before  or  pleading.  State  v.  Litch,  33  Vt.  67.] 
after  that  day  is  inadmissible.  Common-  ^  2  Russ.  on  Crimes,  800,  801.  There- 
wealth  V.  Elwell,  1  Gray,  463.  In  this  fore  a  special  verdict  finding  the  defendant 
case,  the  general  principle,  that  when  an  guilty  of  the  offence  charged  in  the  indict- 
indictment  alleges  an  offence  as  committed  ment,  but  not  finding  him  guilty  in  the 
on  a  certain  specified  day,  the  day  is  not  county  where  it  is  alleged  to  have  been 
material,  and  evidence  of  the  commission  committed,  cannot  be  supported.  But  such 
of  the  offence  on  any  other  day  than  that  a  verdict  mil  not  operate  as  an  acquittal, 
named,  if  within  the  period  of  the  statute  Commonwealth  v.  Call,  21  Pick.  509 ;  Rex 
of  limitations,  is  sufficient,  was  held  to  ap-  v.  Hazel,  1  Leach,  C.  C.  (4th  ed.)  368. 
ply  only  when  the  offence  charged  consists  And  see  Dyer  v.  The  Commonwealth,  23 
of  a  single  act.  And  that  the  principle  Pick.  402.  • 
is  not  applicable  to  the  offence  of  being  a  '-^  7  T.  R.  514,  per  Ld.  Kenyon.  Cogi- 
common  seller  of  spirituous  liquors,  which  tationis  pcenam  nemo  patitur.  Dig.  lib. 
implies  an  offence  not  consisting  of  a  single  48,  tit.  19,  1.  18. 

act,  but  of  a  series  of  acts.     [*  An  allega-  ^  3  inst.  107  ;  Rex  v.  Wheatly,  1  Lead- 

tion  in  the  indictment  that  the  offence  was  ing  Crim.  Cases,  7. 


16  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

defendant ;  and  in  failure  thereof,  the  law  implies  a  criminal  in- 
tent." 1 

§  14.  This  rule,  that  every  person  is  presumed  to  contemplate  the 
ordinary  and  natural  consequences  of  his  oivn  acts,  is  applied  even  in 
capital  cases.2  Because  men  generally  act  deliberately  and  by  the 
determination  of  their  own  will,  and  not  from  the  impulse  of  blind 
passion,  the  law  presumes  that  every  man  always  thus  acts,  until 
the  contrary  appears.  Therefore,  when  one  man  is  found  to  have 
killed  another,  if  the  circumstances  of  the  homicide  do  not  of  them- 
selves show  that  it  was  not  intended,  hut  loas  accidental,  it  is  to  be 
presumed  that  the  death  of  the  deceased  was  designed  by  the 
slayer ;  and  the  burden  of  proof  is  on  him  to  show  that  it  was  oth- 
erwise. And  because,  ordinarily,  no  man  may  lawfully  kill  an- 
other, and  intentional  homicides  are  in  general  the  result  of  malice 
and  evil  passions,  or  proceed  from  "  a  heart  regardless  of  social 
duty,  and  fatally  bent  on  mischief"  ;  in  every  case  of  intentional 
homicide,  not  otherwise  explained  by  its  circumstances,  it  is  fur- 
ther to  be  presumed  that  the  slayer  was  actuated  by  malice  ;  ^  and 
here,  also,  the  burden  of  proof  is  on  him  to  show  that  he  was  not ; 
but  that  the  act  was  either  justifiable  or  excusable.* 

1  Per  Ld.  Mansfield,  in  Rex  v.  "Wood-  another,  yet,  in  its  legal  sense,  has  a  very 

fall,  5  Burr  2667.  different  meaning,   and    characterizes    all 

2' In  York's  case,  9  Met  103,  this  rule  acts  done  with  an  evil  disposition  a 
was  stated  and  illustrated  by  Shaw,  C.  J.,  wrongful  and  unlawful  motive  or  purpose; 
in  the  following  terms:  "A  sane  man,  a  the  wilful  doing  of  an  injurious  act,  with- 
Yoluntary  agent,  acting  upon  motives,  out  lawful  excuse."  9  Met.  104.  And 
must  be  presumed  to  contemplate  and  see  4  B.  &  C.  255;  Wills  v.  Noyes,  12 
intend  the  necessary,  natural,  and  proba-  Pick.  324  ;  1  Russ.  on  Crimes,  p.  483,  n. 
ble  consequences  of  his  own  acts.  If,  (.3ded.);  McPhcrson  r.  Daniels,  10  B.  & 
therefore,  one  voluntarily  or  wilfully  does  C.  272,  per  Littledale,  J. ;  Commonwealth 
an  act  which  has  a  direct  tendency  to  v.  Webster,  5  Cush.  304,  per  Siuxw,  C.  J. 
destroy  another's  life,  the  natural  "and  *  See  York's  case,  9  Met.  103,  where, 
necessary  conclusion  from  the  act  is,  that  upon  a  diversity  of  opinion  among  the 
he  intended  so  to  destrov  such  person's  learned  Judges,  the  question  whether  the 
life.  So,  if  the  direct  tendency  of  the  wil-  law  implied  malice  from  the  fact  of  killing, 
fill  act  is  to  do  another  .some  great  bodily  underwent  a  masterly  discussion,  exhaust- 
harm,  and  death  in  fact  follows,  as  a  natu-  ing  tlie  whole  subject.  This  case  and  its 
ral  and  prob.able  consequence  of  the  act,  it  doctrines  are  ably  examined  in  the  North 
is  presumed  that  he  intended  such  conse-  American  Review  for  Jan.  1851,  p.  178- 
quence,  and  he  must  stand  legallv  respon-  204.  See  also  Commonwealth  c  Haw- 
Bible  for  it.  So,  where  a  dangerous  and  kins,  3  Gray,  463 ;  Best  on  Presumption, 
dcadlv  weapon  is  used,  with  violence,  upon  §  128,  129  ;  Best's  Princii)les  of  Evidence, 
the  person  of  another,  as  this  has  a  direct  §  306  ;  Alison's  Crim.  Law  of  Scotland, 
tendency  to  destroy  life,  or  do  some  great  p.  48,  49  ;  Rex  v.  Greenacre,  8  C.  &  P.  35. 
bodily  harm  to  the  person  assailed,  the  The  State  v.  Smith,  2  Strobh.  77  ;  Hill's 
intention  to  take  life,  or  to  do  him  some  case,  2  Gratt.  594;  [State  v.  Knight,  43 
great  bodily  harm,  is  a  necessary  conclu-  Maine,  11  ;  State  v.  Johnson,  3  Jones  (N. 
sion  from  the  act."  And  see  nntp,  Vol.  1,  C),  266  ;  Greene  v.  State,  28  Miss  6S7.] 
5  34  ;  Rex  v.  Farrington,  Russ.  &.  Ry.  207  ;  In  Ohio,  tlio  presumption  of  law  auainst 
Commonwealth  r.  We l.ster,  5  Cush".  305.  the  prisoner,  from  the  mere  fact  of  killing, 

3  "  .Malice,  although  in  its  popular  sense  is,   that   he   committed    a   murder  of  the 

it  means   hatred,  ill-will,  or   hostility  to  second    degree.      The    State    v.    Turner, 


rAT?T  v.]  GENEEAL   PRINCIPLES.  17 

§  15.  In  tlie  'proof  of  intention,  it  is  not  always  necessary  that 
the  evidence  should  apply  directly  to  the  particular  act,  with  the 
commission  of  which  the  party  is  charged  ;  for  the  unlawful  intent 
in  the  particular  case  may  well  be  inferred  from  a  similar  intent, 
proved  to  have  existed  in  other  transactions  done  before  or  after 
that  time.^  Thus,  upon  the  trial  of  a  person  for  maliciously  shoot- 
ing another,  the  question  being  whether  it  was  done  by  accident 
or  design,  evidence  was  admitted  to  prove  that  the  prisoner  inten- 
tionally shot  at  the  prosecutor  at  another  time,  about  a  quarter  of 
an  hour  distant  from  the  shooting  charged  in  the  indictment.^  So 
upon  an  indictment  for  sending  a  threatening  letter,  the  meaning 
and  intent  of  the  writer  may  be  shown  by  other  letters  written,  or 
verbal  declarations  made,  before  and  after  the  letter  in  question.^ 
So,  upon  a  trial  for  treason  in  adhering  to  the  enemy,  and  proof 
that  the  party  was  seen  among  the  enemy's  troops,  evidence  of  a 
previous  mistake  of  the  prisoner  in  going  over  to  a  body  of  his  own 
countrymen,  supposing  them  to  be  enemies,  was  held  admissible  to 
show  the  intent  with  which  he  was  afterwards  among  them.^  So, 
also,  in  cases  of  homicide,  evidence  of  former  hostility  and  men- 
aces on  the  part  of  the  prisoner  against  the  deceased,  are  admissi- 
ble in  proof  of  malice.^  The  like  evidence  of  acts  and  declarations 
at  other  times,  in  proof  of  the  character  and  intent  of  the  principal 


Wright,  20.     So  also  in  Virginia.    Hill's  with  the  immediate  charge,  was  not  admis- 

case,  supra.     In  Georgia,  "  malice  shall  be  siblc  in  proof  of  guilty  knowledge  ;   as  it 

implied  when  no  considerable  provocation  could  not  lead  to  any  such  conclusion,  but, 

appears,  and  where  all  the  circumstances  on  the  contrary,  was  quite  consistent  with 

of  ihe   killing   show   an   abandoned   and  the  supposition  that,  on  the  former  occa- 

malignant  heart."     Hotchk.  Dig.  p.  705,  sions,    the   goods   had   been  .'stolm  by   the 

§  23.    The  statute  of  Arkansas,  Rev.  Stats,  prisoner  himself.     Lord   Campbell,  in   this 

1837,  div.  3,  art.  1,  §  4,  is  in  nearly  the  case,  said:  "With  regard  to  the  admission 

same  words.     So  is  the  statute  of  Califor-  in  evidence  of  proof  of  previous  utterings, 

nia.     Rev.  Stats.  1S50,  ch.  99,  §  21.     And  upon  indictments  for  uttering  forged  notes, 

of  Illinois,  Rev.  Stats.  184.5,  ch  30,  §  24.  I  have  always  thought  that  those  decisions 

1  Though  the  evidence  offered  in  proof  go  a  great  way ;  and  I  am  by  no  means 

of  intention,  or  of  guilty  knowledge,  may  inclined  to  apply  them  to  the  criminal  law 

also  prove  another  crime,  that  circumstance  generally."     Regina  v.  Oddy,  5  Cox,  C.  C. 

does  not  render  it  inadmissible,  if  it  be  re-  210,  215. 

ceivablc  in  all  other  respects.     Regina  v.  '^  Rex  v.  Yoke,  Russ.  &  Ry.  531.     [But 

Dorsett,  2  C.  &  K.  306.    And  where  several  where  a  party  is  charged  with  poisoning, 

larcenies  were  charged  in  one  count,  and  evidence  that  the  prisoner  poisoned  another 

Ihe  Judge   directed  the  Jury  to   confine  person  some  months  before,  is  inadmissible, 

their  attention  to  one  particular  charge,  it  Farrar  v.  The  State  of  Ohio,  2  Ohio,  N.  S. 

was  held,  that  the  prosecutor  was  entitled  54.]                                      " 

to  give  evidence  of  all  the  charges,  in  order  •*  Rex  v.  Robinson,  2  Leach,  C.  C.  (4th 

to   show   a  felonious   intent.      Regina  v.  ed.)  749;  Rex  v.  Tucker,  1  Moody,  C.  C 

isieasdale.  Id.  765.     But  in  a  more  recent  134;  Reg.  v.  Kain,  8  C.  &  P.  187. 

case,  upon  a  charge  of  feloniously  receiving  ^  Malin's  case,  1  Dal.  33. 

stolen  goods,  it  was  held,  that  the  posses-  ^  1  Pliil.  Ev.  476. 
sion  of  other  stolen  goods,  not  connected 
VOL.  III.                                                 2 


18  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

fact  charged,  has  been  admitted  in  trials  for  arson,i  robbery ,2  libel,^ 
malicious  mischief,*  forgery ,5  conspiracy ,6  and  other  crimes.  In 
regard  to  the  distance  of  time  between  the  principal  fact  in  issue 
and  the  collateral  facts  proposed  to  be  shown  in  proof  of  the  inten- 
tion, so  far  as  it  affects  the  admissibility  of  the  evidence,  no  precise 
rule  has  been  laid  down,  but  the  question  rests  in  the  discretion 
of  the  judge."  Evidence  of  facts  transacted  three  months  before,^ 
and  one  month  afterwards,^  has  been  received  to  prove  guilty 
knowledge  in  a  charge  of  forgery  ;  and  evidence  of  facts  occurring 
five  weeks  afterwards  has  been  rejected. ^^  j^  j-^^g  been  held,  that, 
in  the  case  of  subsequent  facts,  they  must  appear  to  have  some 
connection  with  the  principal  fact  charged.  Thus,  in  a  charge  of 
forgery,  evidence  of  the  subsequent  littering  of  other  forged  notes 
was  held  inadmissible,  unless  it  could  be  shown  that  they  w^ere  of 
the  same  manufacture. ^1  But  in  regard  to  the  previous  uttering  of 
forged  notes  of  a  different  kind,  though  the  admissibility  of  such 
evidence  has  been  thought  questionable,  it  is  now  continually  ad- 
mitted. For  evidence  that  a  man  had  uttered  forged  notes  of  dif- 
ferent descriptions  raises  a  presumption  that  he  was  in  the  habit 
of  procuring  forged  notes,  and  that  he  had  the  criminal  know-ledge 
imputed  to  him.^ 

§  16.  If  several  intents  are  comprised  in  one  allegation  in  the 
indictment,  any  one  of  which,  being  consummated  by  the  principal 
fact,  would  constitute  the  crime,  the  allegation  is  divisible  ;  and 
proof  of  either  of  the  intents,  together  with  the  act  done,  is  sufh- 
cient.  So  it  has  been  held  in  the  case  of  an  assault,  with  intent  to 
abuse  and  carnally  know  a  female  child  ;  ^^  and  of  a  Ubel,  with  in- 
tent to  defame  certain  magistrates  named,  and  to  bring  into  con- 

1  Rcj?ina  v.  Taylor,  5  Cox,  C.  C.  1378.       Martin,  II  Lcif^h,  745  ;  Rex  v.  Millard, 

2  Rex  V.  Winkworth,  4  C.  &  P.  444.  Russ.  &  Ry.  24.5  ;  Rex  v.  Taverner,  4  C. 
«  Stu.art  V.  Lovell,  2  Stark.  R.  34;  Rex     &  l\  413,  note  («). 

V.  Pearce,  1  Pcake's  Cas.  75.     The  same  «  Commonwealth  r.  Eastman,  1   Cush. 

Srincipie  is  applied  in  actions  for  slander.  189;  I  Leading  Crim.  Cases,  264. 

lustcll  ;;.  Macquister,  1   Campb.  49,  n. ;  '  Rex  y.  Salisbury,  2  Russ.  on  Crimes, 

Charlter  v.  Barrett,   1   Peake's  Cas.  22;  776  (3d  ed.),  5  C.  &  P.  115,  S.  C.  but  not 

Mead  r.  Daubigny,  Id.  125  ;  Lee  i;.  Uuson,  S.  P. 

Id-  It'^'-  8  Rex  D.  Ball,  1  Campb.  324;  Russ.  & 

*  Rex  I'.  MogR,  4  C.  &  P.  364 ;  Regina  Ry.  132.     And  see  Rex  v.  Ball,  7  C.  &  P 

V.  Dosset,  2  C.  &  K.  306.  426,  429. 

5  Rex  V.  Wylic,   12  Russ.  on  Crimes,  »  Rex  v.  Smith,  4  C.  &  P.  411. 

403,  404  (3d  e.l.) ;  1  New  Rep.  (4  Bos.  &  w  Rex  v.  Tavenier,  4  C.  &  P.  413,  note 

P.)  92;  TheStatey.  Van  Ilereten,  2Penn.  [a).     [See    Commonwealth   v.  Ilorton,  2 

672  ;  Hess  v.  The  State,  5  Ham.  5  ;  Reed  Gray,  354.] 

f.  The  State,  15  Ohio,  217;  The  State  r.  ""ibid. 

Williams,  2  Rich.  418;  Commonwealth  v.  12  Baylcy  on  Bills,  619  (3d  Am.  cd.). 

Stearns,  10  Met.  256;  Commonwealth  v.  »  Rex  i;.  Dawson,  3  Stark.  R.  62. 


PART  v.] 


GENERAL   PRINCIPLES. 


19 


tempt  the  admiuistration  of  justice.^  So,  of  an  alleged  intent  to 
defraud  A.,  where  the  proof  is  an  intent  to  defraud  A.  and  B.'-^ 

§  17.  Tlie  intent^  moreover,  must  he  proved  as  alleged.  If  the 
act  is  alleged  to  have  been  done  with  intent  to  commit  one  felony, 
and  the  evidence  be  of  an  intent  to  commit  another,  though  it  be 
of  the  like  kind,  the  variance  is  fatal.  Thus,  where  a  burglary 
was  charged,  with  intent  to  steal  the  goods  of  W.,  and  it  appeared 
that  no  such  person  as  W.  had  any  property  there,  but  that  the 
intent  was  to  steal  the  goods  of  D.,  the  alleged  owner  of  the  house  ; 
and  that  the  name  of  W.  had  been  inserted  by  mistake,  instead  of 
D.  ;  it  was  held,  that  the  indictment  was  not  supported.^  So,  if  it 
be  alleged  that  the  prisoner  cut  the  prosecutor,  with  intent  to 
murder  or  disable  him,  and  to  do  him  some  great  bodily  harm, 
and  the  evidence  be  merely  of  an  intent  to  prevent  a  lawful  ar- 
rest, it  is  a  fatal  variance  ;  unless  it  appears  that  he  intended  the 
injury  alleged  for  the  purpose  of  preventing  the  arrest.* 

§  18.   But  in  the  proof  of  an  intent  to  defraud  a  particidar  person, 


1  Rex  V.  Evans,  3  Stark.  R.  35. 

2  Veazie's  case,  7  Greenl.  131. 

3  Rex  V.  Jenks,  2  Leach,  C.  C.  (4th  ed.) 
774;  2  East,  P.  C.  514.  And  see  Com- 
monwealth ?'.  Shaw,  7  Met.  52,  57.  A 
prisoner  was  indicted  for  having  bjirslari- 
ously  broken  and  entered  the  hoi^fc^  the 
prosecutor  in  the  night  time,  wifri  intent 
to  steal  the  "  goods  and  chattels  "  tlieivin. 
The  Jury  found  that  he  broke  and  entered 
with  intent  to  steal  mortgage-deeds.  It 
was  held,  that,  being  subsisting  securities 
for  the  payment  of  money,  mortgage- 
deeds  are  choses  in  action,  and,  as  such, 
were  improperly  described  as  goods  and 
chattels.  Regina  v.  Powell,  2  Denison, 
C.  C.  403;  5  Cox,  C.  C.  396;  14  Eng. 
Law  and  Eq.  12,  515.  There  is  a  class  of 
cases  to  which  this  principle  does  not  ap- 
ply. In  Commonwealth  v.  Harley,  7  Met. 
506,  the  allegation  was  of  a  conspiracy  to 
cheat  and  defraud  a  particuhxr  individual 
named ;  and  it  was  contended  that  a  gen- 
eral intent  to  defraud,  if  it  operated,  when 
carried  into  effect,  to  defraud  a  particular 
individual,  might  well  authorize  the  charge 
of  a  conspiracy  to  defraud  such  person, 
though  that  individual  was  not  in  the  con- 
templation of  the  parties  at  the  time  of 
entering  into  the  conspiracy,  and  it  did 
not  appear  that  the  defendants  had  agreed 
to  perpetrate  the  fraud  on  him  particularly. 
But  it  was  held,  that  proof  that  the  defend- 
ant conspired  to  defraud  the  public  gener- 
ally, or  any  individual  whom  they  might 
meet  and  be  able  to  defraud,  would  not 
sustain  the  indictment,  charging,  as  it  did, 


a  conspiracy  to  defraud  the  individual  who 
was  named  in  the  indictment.  "  Although 
it  is  generally  true,"  said  Dewey,  J.,  in 
Commonwealth  27  Kellogg,  7  Cushing,477, 
"  that  the  party  is  to  be  held  to  have  in- 
tended the  legitimate  effect  of  his  acts, 
and,  in  ordinary  cases  of  indictments  for 
crimes,  it- wouid  be  quite  sufficient  to  al- 
lege and  prove  the  acts  to  have  been  com- 
mitted against  the  person  or  property  of 
the  individual  actually  injured  tltereby, 
yet  this  principle  does  not  fully  apply  to 
cases  like  the  present.  In  an  indictment 
for  a  conspiracy,  the  criminal  oifence  is 
the  act  of  conspiring  together  to  do  some 
criminal  act,  or  to  effect  some  object,  not 
in  itself  criminal,  by  criminal  means. 
The  offence  may  be  committed  before  the 
commission  of  any  overt  acts.  The  gist 
of  the  offence  being  the  conspiracy  pre- 
ceding all  such  overt  acts,  the  purpose  of 
the  conspii'acy  should  be  truly  stated.  If 
it  was  a  general  purpose  to  defraud,  and 
not  aimed  at  any  particular  individual ; 
if  the  person,  who,  upon  the  commission 
of  the  overt  acts  would  'be  defrauded,  was 
unknown ;  then  it  would  be  improper  to 
apply  to  the  original  conspiracy  the  pur- 
pose to  defraud  the  party  who  was  eventu- 
ally defrauded,  but  not  within  any  previous 
purpose  or  design  of  the  conspirators,  or  in 
reference  to  whom  the  conspiracy  itself 
had  any  application." 

*  ilex  V.  Boyce,  1  Moody,  C.  C.  29; 
Rex  V.  Duffin,  Russ.  &  Ry.  365  ;  Rex  v. 
Gillow,  1  Moody,  C.  C.  85 ;  I  Lewin,  C.  C. 
57. 


20  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

it  is  not  necessary  to  show  that  the  prisoner  had  that  particular 
person  in  his  mind  at  the  time  ;  it  is  sufficient,  if  tlie  act  done 
would  have  the  effect  of  defrauding  him  ;  for  the  law  presumes 
that  the  party  intended  to  do  that  which  was  the  natural  conse- 
quence of  his  act.  Thus,  where,  on  an  indictment  for  uttering 
forged  bank-notes,  with  intent  to  defraud  the  bank,  the  jury  found 
that  tlie  intent  was  to  defraud  whoever  might  take  the  notes,  but 
that  the  prisoner  had  in  fact  no  intention  of  defrauding  the  bank, 
in  particular  ;  the  conviction  was  held  right ;  for  it  is  an  inference 
of  law  that  the  party,  in  such  cases,  intended  to  defraud  the  per- 
son wlio  would  have  to  pay  the  bill  or  note,  if  it  were  genuine  ; 
and  this  inference  is  to  be  drawn,  although,  from  the  manner  of 
the  execution  of  the  forgery,  or  from  the  ordinary  habit  of  caution 
on  the  part  of  that  person,  it  would  not  be  likely  to  impose  upon 
him  ;  and  although,  from  its  being  a  negotiable  instrument,  it 
would  be  likely  to  defraud  others  before  it  should  reach  him.^ 

§  19.  It  may,  in  conclusion  of  this  point  be  observed,  that 
though,  in  the  proof  of  criminal  ijitent  or  guilty  knowledge,  any 
other  acts  of  the  party,  contemporaneous  with  the  principal  transac- 
tion, may  be  given  in  evidence,  such  as,  the  secret  possession  of 
other  forged  notes  or  bills,  or  of  implements  for  counterfeiting,  or 
other  instruments  adapted  to  the  commission  of  the  crime  charged, 
or  the  assumption  of  different  names,  or  the  like  ;  ^  yet  such  evi- 
dence regularly  ought  not  to  be  introduced,  until  the  principal  fact, 
constituting  the  corpus  delicti,  has  been  established. 

§  20.  If  a  criminal  act  is  done  through  mistake  or  ignorance  of 
the  law,  it  is  nevertheless  punishable  as  a  crime.  Ignorance  of  the 
municipal  law  is  not  allowed  to  excuse  any  one  who  is  of  the  age 
of  discretion,  and  compos  mentis,  from  the  penalty  for  the  breach  of 
it ;  for  every  such  person  is  bound  to  know  the  law  of  the  land, 
regulating  his  conduct,  and  is  presumed  so  to  do.^  Ignorantia 
juris,  quod  quisquis  tenetur  scire,  neminem  excusat,  is  a  maxim 
of  law,  recognized  from  the  earliest  times,  both  in  England  and 
throughout  the  Roman  empire.  Thus,  if  a  man  thinks  he  has  a 
right  to  kill  a  person  outlawed  or  excommunicated,  and  does  so,  it 

1  Rex  V.  Ma7,a;;ora,  Russ.  &  Ry.  291  ;  Crim.  Cases,  185  ;  Rex  v.  Houfrh,  Russ.  & 
Baylcy  on  Bills,  G13  (2d  Am.  cd.) ;  Shep-  Ry.  120  ;  Rex  v.  Hams,  7  C.  &  V.  429  ; 
pard's  ease,  Kuss.  &  Ry.  169;  Regina  v.     Infra,  ^  110. 

Marcus,  2  Car.  &  Kir.  356.  •'  Hal.  P.  C.  42  ;  Doct.  &  Stud.  Dial.  2, 

2  Sec  Bavlcy  on  Rills,  618,  619  (3d  Am.  ch.  46  ;  2Co.36,-  Bilbic  y.  Lumley,  2  East, 
ed.) ;  Rex  'v.  Millard,  Russ.  &  Ry.  245 ;  469  ;  Co.  Lit.  Prcf.  p.  .36;  Broom's  Max- 
Rex  V.  Wylic,  1  New  Rep.  92 ;  1  Leading  ims,  p.  122. 


PART  v.]  GENERAL  PRINCIPLES.  21 

is  murder.i  ^^d  the  rule  is  applied  to  foreigners,  charged  with 
criminal  acts  here,  which  they  did  not  in  fact  know  to  be  such,  the 
acts  not  being  criminal  in  their  own  country .^ 

§  21.  Ignorayice  or  mistake  of  fact  may  in  some  cases  be  admit- 
ted as  an  excuse  ;  as,  where  a  man  intending  to  do  a  lawful  act, 
does  that  which  is  unlawful.  Thus,  where  one,  being  alarmed  in 
the  night  by  the  cry  that  thieves  had  broken  into  his  house,  and 
searching  for  them,  with  his  sword,  in  the  dark,  by  mistake  killed 
an  inmate  of  his  house,  he  was  held  innocent.^  So,  if  the  sheep  of 
A.  stray  into  the  flock  of  B.,  who  drives  and  shears  them,  suppos- 
ing them  to  be  his  own,  it  is  not  larceny  in  B.*  This  rule  would 
seem  to  hold  good,  in  all  cases  where  the  act,  if  done  knowingly, 
would  be  malum  in  se.  But  where  a  statute  commands  that  an 
act  be  done  or  omitted,  which,  in  the  absence  of  such  statute, 
might  have  been  done  or  omitted  without  culpability,  ignorance 
of  the  fact  or  state  of  things  contemplated  by  the  statute,  it  seems, 
will  not  excuse  its  violation.  Thus,  for  example,  where  the  law 
enacts  the  forfeiture  of  a  ship,  having  smuggled  goods  on  board, 
and  such  goods  are  secreted  on  board  by  some  of  the  crew,  the 
owner  and  officers  being  alike  innocently  ignorant  of  the  fact,  yet 
the  forfeiture  is  incurred,  notwithstanding  their  ignorance.  Such 
is  also  the  case  in  regard  to  many  other  fiscal,  police,  and  other 
laws  and  regulations,  for  the  mere  violation  of  which,  irrespective 
of  the  motives  or  knowledge  of  the  party,  certain  penalties  are 
enacted ;  for  the  law,  in  these  cases,  seems  to  bind  the  party  to 
know  the  facts  and  to  obey  the  law  at  his  peril. 

§  22.  As  it  is  required,  in  indictments,  that  the  names  of  the 
persons  injured,  and  of  all  others  whose  existence  is  legally  essential 
to  the  charge  be  set  forth,  if  known,  it  is,  of  course,  material  that 
they  be  precisely  proved  as  laid.  Thus,  the  name  of  the  legal 
owner,  general  or  special,  of  the  goods  stolen  or  intended  to  be 
stolen,  must  be  alleged  and  proved.^     And  if  the  person  be  de- 

1  4  Bl.  Comm.  27  ;  Plowd.  343.    Regula  which  the  excuse  of  ignorance  might  other- 

est,  jui-is  quidem  ignorantiam  ciiique  no-  wise  be  carried, 

cere,  facti  vero  ignorantiam  non  nocere.  '^  Kex  v.  Esop,  7  C.  &  P.  456. 

Dig.  lib.  22,  tit.  6,  1.  9.     Lord  Hale  ex-  ^  Levett's  case,  Cro.  Car.  .538;  1  Hale, 

presses   it  in   broader  terms :   Ignorantia  P.  C.  42. 

eorum,  quje  quis  scire  tenetur,  non  excusat.  *  1  Hale,  P.  C.  507.  And  see  Pegina  v. 
1  Hale,  P.  C.  42,  This  rule,  in  its  appli-  Piley,  17  Jur.  189;  1  Pearce,  C.  C.  149; 
cation  in  civil  transactions,  was  discussed,  14  Eng.  Law  and  Eq.  11.  544;  Infra,  tit. 
with  great  depth  of  research,  by  tlie  learned  Larceny,  §  159,  and  notes, 
counsel,  in  Haven  v.  Foster,  9  Pick.  112.  &  Hex  v.  Jenks,  2  East,  P.  C.  514;  2 
It  is  founded  in  the  necessities  of  civil  Leach,  C.  C  (4th  ed.)  744;  Common- 
government;  and  the  dangerous  extent  to  wealths.  Clifford,  8  Cush.  215;  [Uegina 


22 


LAW   OF   EVIDENCE  IN   CRIMNAL   CASES. 


[part  V. 


scribed  as  one  whose  name  is  to  the  jurors  unknown,  and  it  be 
proved  that  he  was  known,  the  variance  is  fatal,  and  the  prisoner 
will  be  acquitted,^  But  this  averment  will  be  supported  by  proof 
that  the  name  of  the  person  could  not  be  ascertained  by  any  rea- 
sonable diligence.^  If  there  be  two  persons,  father  and  son,  of  the 
same  name  and  resident  of  the  same  place,  the  father  will  be  un- 
derstood to  be  designated  in  the  indictment,  unless  there  be  the 
addition  of  junior,  or  some  other  designation  of  the  son.^  And  if 
the  person,  who  was  the  subject  of  the  crime,  be  described  with 
unnecessary  particularity,  as,  in  a  charge  of  polygamy,  by  marry- 
ing "  E.  C,  widow,''  this  is  a  matter  of  essential  description,  to  be 
strictly  proved  ;  *  though,  in  the  description  of  the  prisoner  herself, 


V.  Toole,  3  Jur.  (n.  s.)  420 ;  s.  c.  40  Eng. 
Law  and  Eq.  R.  583  ;]  Infra,  tit.  Larceny. 

1  Rex  V.  Walker,  3  Camp.  264  ;  Rex  v. 
Robinson,  1  Holt,  N.  P.  595.  But  see 
Hulstead's  ca.se,  5  Leigh,  724. 

2  Regina  v.  Campbell,  1  C.  &  K.  82 ; 
Regina  v.  Stroud,  Id.  187. 

3  In  Rex  V.  Peace,  3  B.  &  Aid.  579 ;  1 
Leading  Crim.   Cases,   226,  it  was   held, 
that  on  the  trial  of  an  indictment  for  an  as- 
sault upon  E.  E.,  it  is  sufhcient  to  prove 
that  an  assault  was  committed  upon  a  per- 
son of  that  name,  although  it  appear  that 
two  persons  had  the  same  name,  E.  E.  the 
elder,  and  E.  E.  the  younger.    In  The  State 
V.  Vittum,  9  New  Hamp.  519,  the  indict- 
ment alleged  that  the  defendant  committed 
adultery  with  one  L.  W.,  without  any  fur- 
ther designation.     It  appeared  that  there 
were  in  that  town  two  individuals  of  that 
name,  father  and  son,  and  that  the  son 
used  the  addition  of  "junior  "  to  his  name, 
and  was  thereby  well  known   and  distin- 
guished from  his  father.    It  was  held,  that 
the  defendant  had  the  right  to  understand 
that  the  offence  was  charged  to  have  been 
committed  with  the  father,  and  that  evi- 
dence of  adultery  with   the   son   was  not 
admissible    in    evidence.     In    Hodgson's 
case,   1   Lewin,   C.  C.  236  (1831),  the  pris- 
oner  was   indicted   for   stealing  a   horse, 
the  property  of  Joshua  Jennings.     It  ap- 
peared   in    evidence,    that   the    horse  was 
the  property  of  Joshua  Jennings,  the  son 
of  Joshua  Jennings,  the  father.     For  the 
prisoner  it  was  objected,  that  the  person 
named  in  the  indictment  must  be  taken  to 
be  Joshua  Jennings  the  elder.    But  Parke, 
J.,  on  the  authority  of  Rex  v.  Peace,  over- 
ruled the  objection.     The  same  ])oint  was 
afterwards  ruled  on  the  same  authority  in 
Bland's  case,  York  Summer  Assizes  ( 1 832), 
by  BoUand,  B.     Sec  1  Lewin,  C.  C  236. 
In  a  recent  case  in  Maine,  the  same  objec- 
tion was  taken  as  in  Rex  r.  Peace,  and 


overruled.    The  State  v.  Grant,  22  Maine, 
171.     In  this  case,  which  was  an  indict- 
ment for  larceny,  the  property  charged  to 
have  been  stolen  was  alleged  to  have  been 
"  the  property  of  one  Eusebius  Emerson, 
of  Addison,  in  the  county  of  Washington." 
The  evidence  was,  that  there  were,  in  that 
town,  two  persons,  father  and  son,  and  that 
the  property  belonged  to  the  son,  who  had 
usually  written  his  name  with  the  word 
"junior"  attached  to  it.    And  it  was  held, 
that  junior  is  no  part  of  a  name,  and  that 
the  ownership,  as  alleged   in  the   indict- 
ment, was  sufficiently  j)roved.     In  an  in- 
dictment for  perjury,  a  suit  in  the  Ecclesi- 
astical   Court   was   stated   to   have    been 
depending  between  A.  B.  and  C.  D.     The 
proceedings  of  the  suit,  when  produced, 
were  between  A.  B.  and  C.  D.  the  elder, 
and  it  was  held  that  there  was  no  vari- 
ance.    Rex  V.  Bailey,  7  C.  &  P.  264.     In 
this  case,  Williams,  J.,  referred  to  a  manu- 
script case  before  Lawrence,  J.,  where  it 
was  alleged,  that  there  was  an  indictment 
against  A.  B.  and  C.  D.,  at  a  former  time ; 
and  on   the  record   being  ])roduccd,  it  ap- 
peared  that  it  was   an  indictment  against 
A.  B.   and  C.  D.  the  younger,  and  the 
variance  was  held  to  be  fatal.     In  assunij)- 
sit  on  a  promissory  note  made  by  the  de- 
fendant,  payable  to  A.  B.,  and  indorsed 
by  A.  B.  to  the  plaintiff,  it  appeared  that 
there  were  two  jiersons  of  the  same  name, 
fatiier  and  son,  and  there  was  no  evidonco 
to  show   to  which  of  them   the   note   had 
been  given  ;   but  it  appeared   that  the  in- 
dorsement was  in  the  lian<lwritiiig  of  A.  B. 
the  son.     It  was  held,  tliat  although  jniind 
facie  the  presumjition  that  A.  B.  tlic  lather 
was  meant,  that  presumption  was  rebutted 
by    the    son's    indorsement.      Stebbiiig    ". 
Spicer,  8  C.  B.  827.     See  also  Kincaid  v 
Howe,  10  Mass.  205. 

•*  Rex  «;.  Dceley,  4    C.    &   P.    579  ;    1 
Moody,    C.  C.   303.      The   contrary   had 


PART  v.]  GENERAL  PRINCIPLES.  23 

as  being  "  the  wife  of  A.  B.,"  these  words  have  been  held  imma- 
terial to  be  proved.^  Tlie  name  of  the  prisoner  needs  no  proof, 
unless  a  misnomer  is  pleaded  in  abatement,^  in  which  case  the  sub- 
stance of  the  plea  is,  that  he  is  named  and  called  by  the  name  of 
CD.,  and  ever  since  the  time  of  his  birth  has  always  been  named 
and  called  by  that  name  ;  with  a  traverse  of  the  name  stated  in 
the  indictment.  Tlie  affirmative  of  this  issue,  which  is  on  the 
prisoner,  is  usually  proved  by  production  of  the  certificate  of  his 
baptism,  with  evidence  of  his  identity  ;  or  by  parol  evidence  that 
he  has  always  been  known  and  called  by  the  name  alleged  in  his 
plea,  and  not  by  the  name  stated  in  the  indictment.  This  plea  is 
usually  answered  by  replying  that  he  was  and  is  as  well  known 
and  called  by  the  one  name  as  by  the  other.  But  to  prove  this, 
evidence  that  he  has  once  or  twice  been  called  by  the  name  in  the 
indictment,  will  not  suffice.^  Should  the  defendant  in  his  plea 
also  state  that  he  was  baptized  by  the  name  he  alleges,  it  has  been 
held,  that  the  allegation  is  material,  and  that  he  must  prove  it.* 
But  this  may  perhaps  be  questioned,  as  in  the  ordinary  mode  of 
pleading,  it  would  be  but  matter  of  inducement  to  the  principal 
allegation,  namely,  that  he  in  fact  had  always  borne  a  different 
name  from  that  by  which  he  was  indicted.^ 

§  23.  It  may  be  added  in  this  place,  as  a  rule  equally  applicable 
in  criminal  as  in  civil  cases,  that  the  substance  of  the  issue  must  be 
proved.  This  rule  has  already  been  discussed  in  a  preceding 
volume.^ 

§  24.  The  same  may  be  observed  as  to  the  burden  of  proofs  the 
rules  in  regard  to  which  have  been  stated  in  the  same  volume.'^ 

been  ruled  at  the  assizes,  in  the  descrip-  abatement  that  his  name  was  Orville  A. 

tion  of  the  owner  of  goods  stolen.     Rex  v.  Rockwell,  it  was  held  that  proof  that  he 

Ogilvie,  2  C.  &  P.  230.     And  see  Rex  v.  usually   signed  his   name   and  was  gen- 

Tennent,  4  C.  &  P.  580,  n.  erally  called  O.   A.    Rockwell,    and  that 

1  Commonwealth  v.  Lewis,  1  Met.  151.  certain  of  his  relatives  called  him  Alonzo, 
See  further  on  the  subject  of  this  section,  was  insufficient  to  sustain  a  replication 
ante,  Vol.  1,  §65.  In  the  following  cases  that  he  was  as  well  known  by  the  first 
of  infanticide,  a  variance  in  proving  the  name  as  the  last.] 

child's  name  was  held  fatal.     Clark's  case,  *  Holman  v.  Walden,  1   Salk.  6 ;  Wele- 

liuss.  &  Ry.  358;  Regina  v.  Stroud,  1  C.  ker  v.  Le  Peletier,  1  Campb.  479. 

&  K.  187;  2  Moody,  C.  C.  270.  &  Chitty  on  Plead.  902,  1142;  1  Stark. 

^  If  the  defendant  pleads  not  guilty,  he  Ev.  386,  390,  cum  not. 

cannot    afterwards    plead    in    abatement.  ^  See  ante,  Vol.  1,  Part  2,  ch.  2,  per  tot. 

Turns  v.  The  Commonwealth,  6  Met.  235 ;  §  56  -  73. 

Commonwealth  v.  Dedham,  16  Mass.  139.  '  See  ante,  Vol.  1,  Part  2,  ch.  3,  §  74  -  81- 

2  Mestayer  v.  Hertz,  1  M.  &  S.  453,  Commonwealth  v.  McKie,  1  Gray,  61  ;  1 
per  Ld.  Ellcnborough.  [*  In  Rockwell  Leading  Crim.  Cases,  347,  and  note.  The 
V.  State,  12  Ohio  St.  (N.  S.)  427,  where  question  as  to  the  burden  of  proving  the 
the  plaintiff  was  indicted  by  the  name  negative  averment  of  disqualification  in 
of   O.  Alonzo    Rockwell,   and  plead    in  the  defendant,  arising  from  his  want  of 


24 


LAW   OF   EVIDENCE   IN   CRIJIIXAL   CASES. 


[part  V. 


§  25.  Upon  the  admissibility  of  evidence  of  character,  whether  of 
the  prisoner,  or  of  the  party  on  whom  the  crime  is  alleged  to  have 
been  committed,  there  has  been  some  fluctuation  of  opinion.  Evi- 
dence of  the  prisoner's  good  character  Avas  formerly  held  to  be 


license  to  do  the  act  complained  of,  was 
fully  considered  in  The  Commonwealth  v. 
Thurlow,  24  Pick.  374,  which  was  an  in- 
dictment for  scllinii  spirituous  liquors 
without  license.  The  Chief  Justice  de- 
livered the  judiimcnt  of  the  Court  upon 
this  point  in  the  following  terms :  "  The 
last  exccjition  necessary  to  be  considered 
is,  that  the  Court  ruled  that  the  prosecu- 
tor need  give  no  evidence  in  support  of 
the  negative  averment,  tiiat  the  defendant 
was  not  duly  licensed,  thereby  throwing 
on  him  the  burden  of  proving  that  he  was 
licensed,  if  he  intends  to  rely  on  that  fact 
by  way  of  defence.  The  Court  entertained 
no  doubt  that  it  is  necessary  to  aver  in  the 
indictment,  as  a  substantive  part  of  the 
charge,  that  the  defendant,  at  the  time  of 
selling,  was  not  duly  licensed.  How  fai", 
and  whether  under  various  circumstances, 
it  is  necessary  to  prove  such  negative  aver- 
ment, is  a  Cjuestion  of  great  difficiUty,  upon 
which  there  are  conflicting  authorities. 
Cases  may  be  suggested  of  great  difficulty 
on  either  side  of  the  general  question. 
Suppose,  under  the  English  game  laws, 
an  unqualified  person  prosecuted  for  shoot- 
ing game  without  the  license  of  the  lord 
of  the  manor,  and  after  the  alleged  offence 
and  before  the  trial  the  lord  dies,  and  no 
proof  of  license,  which  may  have  been  by 
parol,  can  be  given.  Shall  he  be  con- 
victed for  want  of  such  afhrmative  proof, 
or  shall  the  prosecution  fail  for  want  of 
proof  to  negative  it  ?  Again,  suppose 
under  the  law  of  this  Commonwealth  it 
were  made  penal  for  any  person  to  sell 
goods  as  a  hawker  and  pedler,  without  a 
license  from  the  selectmen  of  some  town 
in  the  Commonwealth.  Suppose  one  pros- 
ecuted for  the  penalty,  and  tiic  indictment, 
as  here,  contains  the  negative  averment, 
that  he  was  not  duly  licensed.  To  support 
this  negative  averment,  the  selectmen  of 
more  than  three  hundred  towns  must  be 
called.  It  may  l)e  said,  that  the  difficulty 
of  obtaining  proof  is  not  to  sujiersede  tlie 
necessity  of  it,  and  enable  a  jiarty  having  the 
burden,  to  succeed  without  proof.  Tliis 
is  true  ;  but  when  the  proceeding  is  upon 
statute,  an  extreme  difficulty  of  obtaining 
proof  on  one  side,  amounting  nearly  to 
impracticability,  and  great  facility  of  fur- 
nishing it  on  the  other,  if  it  exists,  leails 
to  a  strong  inference,  that  such  course  was 
not  intended  by  the  legislature  to  be  re- 
quired.    It  would  no  doubt  be  competent 


for  the  legislature  so  to  frame  a  statute 
provision,  as  to  hold  a  j^arty  liable  to  the 
penalty,  who  should  not  ])roducc  a  license. 
Besides,  the  common-law  rules  of  evidence 
are  founded  ujjon  good  sense  and  experi- 
ence, and  adapted  to  practical  use,  and 
ought  to  be  so  apidied  as  to  accomplish 
the  purposes  for  which  they  wore  framed. 
But  the  Court  have  not  thought  it  neces- 
sary to  decide  the  general  question ;  cases 
may  be  affected  by  special  circumstances, 
giving  rise  to  distinctions  applicable  to 
them  to  be  considered  as  they  arise.  In 
the  present  case,  the  Court  are  of  opinion 
that  the  prosecutor  was  bound  to  produce 
pn'iiid  facie  evidence,  that  the  defendant 
was  not  licensed,  and  that  no  evidence  of 
that  averment  having  been  given,  the  ver- 
dict ought  to  be  set  aside.  The  general 
rule  is,  that  all  the  averments  necessary  to 
constitute  the  substantive  offence,  must 
be  proved.  If  there  is  any  exception,  it 
is  from  necessity,  or  that  great  difficulty, 
amounting,  practically,  to  such  necessity ; 
or,  in  other  words,  where  one  party  could 
not  show  the  negative,  and  where  the  other 
could  with  perfect  ease  show  the  afhrm- 
ative.  But  if  a  party  is  licensed  as  a 
retailer  under  the  statutes  of  the  Common- 
wealth, it  must  have  been  done  by  the 
county  commissioners  for  the  county 
where  the  cause  is  tried,  and  within  one 
year  next  previous  to  the  alleged  ofiience. 
The  county  commissioners  have  a  clerk, 
and  are  required  by  law  to  keep  a  record, 
or  memorandum  in  writing,  of  their  acts, 
including  the  granting  of  licenses.  This 
jjroof  is  equally  accessible  to  both  parties, 
the  negative  averment  can  be  proved  with 
great  facility,  and  therefore,  in  conformity 
to  the  general  rule,  the  prosecutor  ought 
to  produce  it,  before  he  is  entitled  to  ask 
a  Jury  to  convict  the  party  accused."  24 
Pick.  .'iSO,  ,'i81.  This  point  has  since  been 
settled  otherwise,  in  Mussdc/tiisetls,  by  Stat. 
1844,  ch.  102,  whieh  devolves  on  the  de- 
fendant the  burden  of  proving  the  license. 
[Sec  also  Gen.  Stat.  18(30,  ch.  IGD.]  So 
it  is  held  at  common  law  in  :\oilh  Cmo- 
linu ;  The  State  r.  I\Iori-ison,  .3  l)ev.  299. 
And  in  Ki-iiiitd.-i/ ;  Ilnskill  r.  The  C(jm- 
moiiwealtii,  .3  B.  Monr.  .'342.  And  in 
Mitlnr;  The  State  v.  Crowell,  2.5  Maine. 
AtkI  in  Iinliuiiii ;  Shearer  i-.  'I'lu;  State,  7 
Blackf.  99.  And  see  «///<-,  Vol.  1.  §  99. 
[As  to  the  burden  of  proof  of  insanity,  seo 
Commonwealth  v.  Eddy,  7  Gray,  583.] 


PART  v.]  GENERAL   PRINCIPLES.  25 

admissible,  infavorem  vitoe,  in  all  cases  of  treason  and  felony  ;  but 
this  reason  is  now  no  longer  given,  the  true  question  being, 
whether  the  character  is  in  issue.  "  I  cannot,  in  principle,"  said 
Mr.  Justice  Patteson,  "  make  any  distinction  between  evidence  of 
facts  and  evidence  of  character.  The  latter  is  equally  laid  before 
the  Jury,  as  the  former,  as  being  relevant  to  the  question  of  guilty 
or  not  guilty.  The  object  of  laying  it  before  the  Jury  is  to  induce 
them  to  believe,  from  the  improbability  that  a  person  of  good  char- 
acter should  have  conducted  himself  as  alleged,  that  there  is  some 
mistake  or  misrepresentation  in  the  evidence  on  the  part  of  the 
prosecution,  and  it  is  strictly  evidence  in  the  case."  ^  The  admis- 
sibility of  this  evidence  has  sometimes  been  restricted  to  doubtful 
cases  ;  ^  but  it  is  conceived  that  if  the  evidence  is  at  all  relevant  to 
the  issue,  it  is  not  for  the  judge  to  decide,  before  the  evidence  is 
all  exhibited,  whether  the  case  is-  in  fact  doubtful  or  not ;  nor  in- 
deed afterwards  ;  the  weight  of  the  evidence  being  a  question  for 
the  Jury  alone.  His  duty  seems  to  be,  to  leave  the  Jury  to  decide, 
upon  tlie  whole  evidence,  whether  an  individual,  whose  character 
■was  previously  unblemished,  is  or  is  not  guilty  of  the  crime  of 
•v^hich  he  is  accused.^  But  the  prosecutor  is  not  allowed  to  call 
witnesses  to  the  general  bad  character  of  the  prisoner,  unless  to 
rebut  the  evidence  of  his  good  character  already  adduced  by  the 
prisoner;*  and  even  this  has  recently,  in  England,  been  denied.^ 
The  evidence,  when  admissible,  ought  to  be  restricted  to  the  trait 
of  character  which  is  in  issue  ;  or,  as  it  is  elsewhere  expressed, 
ought  to  bear  some  analogy  and  reference  to  the  nature  of  the 
charge  ;  it  being  obviously  irrelevant  and  absurd,  on  a  charge 
of  stealing,  to  inquire  into  the  prisoner's  loyalty  ;  or,  on  a  trial 


1  Rex  I'.  Stannard,  7  C.  &  P.  673.    Wil-  ^  United  States  v.  Rondenbush,  1  Baldw. 

liams,  J.,  concurred  in  this  opinion.     And  514.     And  see  Rex  ?'.  Davison,  31   How. 

so  is  the  law  in  Scotland.     Alison's  Pract.  St.  Tr.  217,  per  Ld.  Ellenborough ;  Wills 

p.  629.     The  same  view  was  taken  by  that  on   Cir.   Ev.   p.   131  ;    The    State  v.  Mc- 

eminent  jurist.  Chief  Justice  Parsons,  of  Daniel,  8  Sm.  &  M.  401. 

Massachusetts,  who  thought  that  the  pris-  ^  2  Huss.  on  Crimes,  785,  786. 

oner  ought  to  be  allowed  to  give  his  gen-  *  Bull.  N.  P.  296;    Commonwealth  v. 

eral  character  in  evidence,  in  all  criminal  Webster,    5    Cush.    325  ;    The   People    v. 

cases.     Commonwealth  r.  Hardy,  2  Mass.  White,    14    Wend.    Ill;    Carter   v.    The 

317.     The  other  Judges  concurred  in  ad-  Commonwealth,  2  Virg.   Cas.   169  ;   Best 

mitting  the  evidence  in  that  case, /"/aro/WM  on  Presump.  §  155,  p.  214;  The  State  v. 

vita:,  it  i)eing  a  trial  for  murder;  but  were  Merrill,  2  Dev.  269.    The  prisoner  cannot, 

not  prepared  at  that  time  to  go  further,  for  this  purpose,  rely  on  the  general  pre- 

And  see  The  State  i\  Wells,  Coxe,  424  ;  sumption  of  innocence ;  his  good  character 

Wills  on  Cir.  Ev.  p.  131  ;  Commonwealth  must  be  otherwise  proved.     The  State  v. 

V.  Webster,  5  Cush.  324,  325;  Wharton's  Ford,  1  Strobh.  517,  note. 

Am.  Grim.  Law,  p.  233-237  (2d  ed.).  ^  Kcgina  v.  Burt,  5  Coxe,  C.  C.  284. 


26 


LAW   OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


for  treason,  to  inquire  into  his  character  for  honesty  in  his  private 
dealings.^ 

§  26.  But  it  is  not  in  all  public  prosecutions  for  breach  of  law, 
that  evidence  of  tlie  party's  general  character  is  admissible.  In  a 
trial  of  an  information  by  the  Attorney-General,  for  keeping  false 
weights,  and  for  offering  to  corrupt  an  officer,  this  evidence  was 
rejected  by  Ch.  Baron  Eyre,  who  said,  that  it  would  be  contrary 
to  the  true  line  of  distinction  to  admit  it,  which  is  this  :  that  in  a 
direct  prosecution  for  a  crime,  such  evidence  is  admissible,  but  where 
the  prosecution  is  not  directly  for  the  crime  but  for  the  penalty/,  as 
in  this  information,  it  is  not.^  It  would  seem,  therefore,  to  result, 
that  wherever,  in  a  criminal  prosecution,  guilty  knowledge  or 
criminal  intention  is  of  the  essence  of  the  offence,  evidence  of  the 
general  character  of  the  party  is  relevant  to  the  issue,  and  there- 
fore admissible  ;  but  where  a  penalty  is  claimed  for  the  mere  act, 
irrespective  of  the  intention,  it  is  not.^ 

§  27.  In  regard  to  the  character  of  the  person  on  zvhom  the  offence 
was  committed,  no  evidence  is  in  general  admissible,  the  character 
being  no  part  of  the  res  gestce.  Hence,  where  evidence  was  offered 
to  prove  that  the  person  killed  was  in  the  habit  of  drinking  to  ex- 
cess, and  that  drinking  made  him  exceedingly  quarrelsome,  sav- 
age, and  dangerous,  and  when  intoxicated  he  frequently  threat- 
ened the  lives  of  his  wife  and  others,  whom  the  prisoner  had  more 
than  once  been  called  upon  to  protect  against  his  fury ;   all  which 


1  Ante,  VoL  1,  §  55  ;  1  Phil.  Ev.  469 
(9th  ed.) ;  2  Russ.  on  Crimes,  784  ;  Best 
on  Presumpt.  §  153,  p.  213.  [*And  the 
evidence  must  be  confined  to  the  prisoner's 
general  reputation  ;  particular  facts  cannot 
be  given  upon  the  question.  Reg.  v.  Row- 
ton,  11  Jur.  (N.  S.)  325.] 

^  Attorney-General  v.  Bowman,  2  B.  & 
P.  532,  note.  From  this  case  Mr.  Peake 
has  deduced  the  rule  to  be,  that  evidence 
of  character  is  admissible  only  in  prosecu- 
tions wliich  subject  a  man  to  corporal 
pu7iishment ;  and  not  in  actions  or  infor- 
mations for  penalties,  though  founded  on 
the  fraudulent  conduct  of  the  defendant. 
Peake's  Evid.  by  Norris,  p.  14.  But  the 
correctness  of  the  former  branch  of  his 
rulQ  may  perhaps  be  questioned ;  inas- 
much a.s  crimes,  which  arc  mala  in  se,  are 
in  some  cases  punished  only  by  a  pecuni- 
ary mulct.  In  the  Attoriiev-General  i*. 
Radloff,  26  Eng.  Law  and  Eq.  Kcp.  416, 
which  was  a  proceeding  in  tlie  Court  of 
Exchequer,  on  the  part  of  the  Attorney- 
General,  to  recover  penalties  by  means  of 


an  information,  Martin,  B.,  said :  "  In 
criminal  cases,  evidence  of  the  good  charac- 
ter of  the  accused  is  most  properly,  and 
with  good  reason,  admissible  in  evidence, 
because  there  is  a  fair  and  just  presump- 
tion that  a  person  of  good  character  would 
not  commit  a  crime ;  but  in  civil  cases  such 
evidence  is  with  equal  good  reason  not 
adnutted,  because  no  presumption  would 
fairly  arise,  in  the  very  great  proportion  of 
such  cases,  from  the  good  character  of  the 
defendant,  that  he  did  not  commit  the 
breacii  of  contract  or  of  civil  duty  alleged 
against  him.  But  it  is  not  admissible  in 
such  cases  as  the  present,  and  tiic  reason 
given  is  (as  indeed  it  must  be),  that  tho 
proceeding  is  not  a  criminal  proceciling, 
but  in  the  nature  of  a  civil  one,  and  that 
therefore  the  good  character  of  the  defend- 
ant would  afford  no  just  ground  of  pre- 
sumption tliat  he  had  not  done  the  act  in 
respect  of  which  the  penalty  is  imposed." 

"  See  supra,  §  25 ;  Best  on  Presumpt. 
§  153,  p.  213. 


PART  v.]  GENERAL   PRINCIPLES.  27 

was  matter  of  common  notoriety  ;  it  was  held  rightly  rejected,  as 
having  no  connection  with  what  took  place  at  the  time  of  the  homi- 
cide.i  The  only  exception  to  this  rule  is  in  trials  for  rape,  or  for 
an  assault  with  intent  to  commit  that  crime  ;  where  the  bad  char- 
acter of  the  prosecutrix  for  chastity  may,  under  the  circumstances 
of  particvilar  cases,  afford  a  just  inference  as  to  the  probability  of 
her  having  consented  to  the  act  for  which  the  prisoner  is  indicted. ^ 
But  on  a  charge  of  homicide,  the  existence  of  kindly  relations  be- 
tween the  deceased  and  the  prisoner,  and  the  expressions  of  good- 
will and  acts  of  kindness  on  the  part  of  the  latter  towards  the 
former,  are  always  admissible  in  his  favor.^ 

§  28.  It  is  further  to  be  observed,  that  every  criminal  charge  is 
to  be  tried  by  the  rules  of  evidence  recognized  by  our  own  laws. 
Foreign  rules  of  evidence  have  no  force,  as  such,  in  this  country ; 
nor  have  the  rules  of  evidence  in  one  State  of  the  Union  any  force, 
on  that  account,  in  another  State  of  the  Union.  In  this  respect, 
the  law  in  civil  and  criminal  cases  is  the  same  ;  the  general  rule 
being  this,  that  so  much  of  the  law  as  affects  the  rights  of  the  par- 
ties, or  goes  to  the  merits  and  substance  of  the  case  (acZ  litis  decis- 
ionem'),  is  adopted  from  the  foreign  country  ;  but  the  law  which 
affects  the  remedy  only,  or  relates  to  the  manner  of  trial  {ad  litis 
ordinationem'),  is  taken  from  the  lex  fori  of  the  country  where  the 
trial  is  had.*  Thus,  though  deeds  prepared  and  witnessed  as  pre- 
scribed by  a  statute  in  Scotland,  are  admitted  to  be  read  in  the 
courts  of  that  country  without  further  proof ;  yet  they  cannot  be 
read  in  the  courts  of  England  without  proof  by  the  attesting  wit- 
nesses.5  So,  in  some  of  the  United  States,  deeds  duly  acknowl- 
edged and  registered  are,  by  statute,  made  admissible  in  evidence, 
without  further  proof  of  execution  ;  while  in  others,  the  proof 
required  by  the  common  law  is  still  demanded  in  all  cases.^  In 
respect  to  crimes,  they  are  regarded  by  the  common  law  as  purely 

1  The  State  v.  Field,  14  Maine,  244.  farther,  on  the  subject  of  character  in  evi- 
And  see  York's  case,  7  Law  Rep.  507  -  dence,  Wharton's  Am.  Crim.  Law,  pp.  233 
509;  The  State  v.  Thawley,  4  Harringt.     -237. 

562  ;  Quesenbcrry  v.  The  State,  3  Stew.  &  *  Huber  v.  Steiner,  2  Bing.  N.  C.  202. 

Port.  308  ;  The  State  v.  Tilley,  3  Ired.  424.  ^  Yates  v.  Thomson,  3  CI.  &  Fin.  577, 

But  where  it  was  doubtfal  whether  the  kill-  580,  per  Ld.  Brougham.     And  see  Story, 

ing  was  from  a  just  apprehension  of  dan-  Confi.  Laws,  §  634  a,  and  note, 

ger,  and  in  self-preservation,  such  evidence  ^  Atite,  Vol.  1,  §  573,  note  ;  4  Cniise's 

has  been  held  admissible.     Monroe's  case.  Dig.  tit.  32,  ch.  2,  §  77,  80,  notes ;  and  ch. 

5  Georgia,  85.  29,  §  1,  note.    See  other  examples  in  Brown 

2  Kex  V.  Clarke,  2  Stark.  R.  241  ;  1  i-.  Thornton,  6  Ad.  &  El.  185,  and  cases 
Phil.  Evid.  468  (9th  ed.) ;  Rex  v.  Barker,  there  cited ;  British  Linen  Co.  v.  Drum- 
3  C.  &  P.  589  mond,  10  B.  &  C.  903  ;  Clark  v.  MuUick, 

8  1  Phil.  Ev.  470  (9th  ed.).     And  see     3  Moore,  P.  C.  Rep.  252,  279,  280. 


28  LAW   OF  EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

local,  and  therefore  cognizable  and  punishable  only  in  the  country 
"where  they  were  committed.  No  other  nation  has  any  right  to 
punish  them  ;  or  is  under  any  obligation  to  take  notice  of  or  en- 
force any  judgment  rendered  in  a  criminal  case  by  a  foreign 
tribunal.^ 

§  29.  A  distinction  is  to  be  noted  between  civil  and  criminal 
cases,  in  respect  to  the  degree  or  quantity  of  evidence  necessary  to 
justify  the  jury  in  finding  their  verdict  for  the  government.  In 
civil  cases,  their  duty  is  to  weigh  the  evidence  carefully,  and  to 
find  for  the  party  in  whose  favor  the  evidence  preponderates,  al- 
though it  be  not  free  from  reasonable  doubt.  But  in  criminal 
trials  the  party  accused  is  entitled  to  the  benefit  of  the  legal  pre- 
sumption in  favor  of  innocence,  which  in  doubtful  cases  is  always 
sufficient  to  turn  the  scale  in  his  favor.  It  is,  tlierefore,  a  rule  of 
criminal  law,  that  the  guilt  of  the  accused  must  he  fully  j^t'oved. 
Neither  a  mere  preponderance  of  evidence,  nor  any  weight  of  pre- 
ponderant evidence  is  sufficient  for  the  purpose,  unless  it  gejierate 
full  belief  of  the  fact,  to  the  exclusion  of  all  reasonable  doubt.^ 
The  oath  administered  to  the  Jurors,  according  to  the  common  law, 
is  in  accordance  with  this  distinction.  In  civil  causes,  they  are 
sworn  "  well  and  truly  to  try  the  issue  between  the  parties,  accord- 
ing to  law  and  the  evidence  given  "  them  ;  but  in  criminal  causes 
their  oath  is,  "  you  shall  well  and  truly  try,  and  true  deliverance 
make,  between  "  (the  King  or  State)  "  and  the  prisoner  at  the  bar, 

^  Story,  Confl.  Laws,  §  620  -  625  ;  Ante,  The  burden  of  proof  is  upon  the  ])rosccutor. 

Vol.  1,  §  378.     [Where  an  accessory  pro-  All  the  presumptions  of  law,  iruli']ienclfnt 

cures  a  crime  in  one  State  to  be  committed  of  evidence,  are  in  favor  of  innocence ;  and 

in  another,  he  cannot  be  tried  in  tlic  latter  every  person  is  presumed  to  be  innocent 

State  for  the  offence  of  procuring;  the  crime  until  he  is  proved  f^uilty.     If  upon  such 

to  be  committed.    State  v.  Moore,  6  Foster  proof  there  is  reasonable  doubt  remaiuinfr, 

(N.  H.),  448.]  the  accused  is  entitled  to  the  Ivnctit  of  it 

2  1  Stark.  Kvid.  478.  Quod  Dubitas,  ne  by  an  acquittal,  for  it  is  not  suihcient  to  es- 
fcceris.  I  Male,  P.  C.  300.  And  see  Giles  tablish  a  jjrobability,  thoui^h  a  strong  one, 
I'.  Tiie  State,  6  Georffia,  276.  In  Dr.  Web-  arising-  from  tlie  tioctrine  of  chances,  that 
stcr's  case,  the  learned  Chief  Justice  ex-  the  fact  charged  is  more  likely  to  be  true 
plained  this  degree  of  ])roof  in  the  follow-  than  the  contrary;  but  the  evidence  must 
ing  terms  :  "  Tiien  what  is  reasonable  establish  the  trutii  of  the  fact  to  a  reason- 
doubt  ?  It  is  a  term  often  used,  ])rol)ab!y  able  ami  moral  certainty  ;  a  certainty  that 
pretty  well  understood,  but  not  easily  de-  convinces  and  directs  the  understanding, 
fined.  It  is  not  mere  possible  doubt  ;  and  satisfies  the  reason  and  jiulgment,  of 
because  cverythin'.:  relating  to  human  af-  tliose  who  are  bound  to  act  conscicntiousij' 
fairs,  and  depending  on  moral  evidence,  upon  it.  This  we  take  to  be  ])roof  beyond 
is  open  to  soim;  jiossible  or  imagimiry  reasonable  doubt;  because  if  tlie  law,  which 
doubt.  It  is  that  state  of  the  case  which,  mostly  depends  upon  considerations  of  a 
after  tiic  entire  comparison  and  considera-  moral  nature,  shoidd  go  further  than  this, 
tion  of  all  the  evidence,  leaves  the  minds  and  rc(|uire  aiisolutc  ccrtaint},  it  would  cx- 
of  Jurors  in  that  condition  that  they  can-  elude  circumstantial  evidence  altogether." 
not  say  they  feci  an  abiding  conviction,  to  a  Commonwealth  v.  Webster,  5  Cush.  320. 
moral  certainty,  of  the  truth  of  the  charge. 


CHAP,  v.] 


GENERAL  PRINCIPLES. 


29 


according,"  &c.'^  It  is  elsewhere  said,  that  the  persuasion  of  guilt 
ought  to  amount  to  a  moral  certainty,  or  "  such  a  moral  certainty 
as  convinces  the  minds  of  the  tribunal  as  reasonable  men,  beyond 
all  reasonable  doubt."  ^  And  this  degree  of  conviction  ought  to  be 
produced  when  the  facts  proved  coincide  with  and  are  legally  suffi- 
cient to  establish  the  truth  of  the  hypothesis  assumed,  namely,  the 
guilt  of  the  party  accused,  and  are  inconsistent  with  any  other  hy- 
pothesis. For  it  is  not  enough  that  the  evidence  goes  to  show  his 
guilt ;  it  must  be  inconsistent  with  the  reasonable  supposition  of 
his  innocence.  Tutius  semper  est  err  are  in  acquietando,  qudm  in 
puniendo  ;  ex  lyarte  miser icor dice  qudm  ex  parte  justitioi.^ 


1  2  Hale,  P.  C.  293. 

2  Per  Parke,  B.,  in  Rex  v.  Sterne,  Sur- 
rey Sum.  Ass.  1843,  cited  in  Best,  Prin. 
Evid.  p.  100.  The  learned  and  acute  re- 
viewer of  Dr.  Webster's  trial  thinks  that 
reasonable  doubt  "  may,  perhaps,  be  better 
described  by  saying,  "that  all  reasonable 
hesitation  in  the  mind  of  the  triers,  re- 
specting the  truth  of  the  hypothesis  at- 
tempted to  be  sustained,  must  be  removed 
by  the  proof"  The  North  American  Re- 
view, for  Jan.  1851,  p.  201.  Reasonable 
certainty  of  the  prisoner's  guilt  is  described 
by  Pollock,  C.  B.,  as  being  that  degree  of 
certainty,  upon  which  the  Jurors  would 
act  in  their  own  grave  and  important  con- 
cerns. See  Wills  on  Circumst.  Evid.  p. 
210;  Regina  v.  Manning,  13  Jur.  962.  If 
the  guilt  of  the  prisoner  is  to  be  established 
by  a  chain  of  cirt-umstances,  and  the  Jurors 
have  a  reasonable  doubt  in  regard  to  any 
one  of  them,  that  one  ought  not  to  have 
any  influence,  in  making  up  their  verdict. 
Sumner  v.  The  State,  5  Blackf  579.  In 
order  to  warrant  a  conviction  of  crime,  on 
circumstantial  evidence,  each  fact,  neces- 
sary to  the  conclusion  sought  to  be  estab- 
lished, must  be  proved  by  competent  evi- 
dence, beyond  a  reasonable  doubt ;  all  the 
facts  must  be  consistent  with  each  other, 
and  with  the  main  facts  sought  to  be 
proved ;  and  the  circumstances  taken  to- 
gether, must  be  of  a  conclusive  nature, 
and  leading  on  the  whole  to  a  satisfactory 
conclusion,  and  producing  in  effect  a  rea- 
sonable and  moral  certainty  that  the  ac- 
cused, and  no  other  person,  committed  the 
offence  charged.  Commonwealth  v.  Web- 
ster, 5  Cush.  296,  313,  317-319. 

3  2  Hale,  P.  C.  290  ;  Sumner  v.  The 
State,  5  Blackf.  579.  This  sentiment  of 
Lord  Hale,  as  to  the  importance  of  ex- 
treme care  in  ascertaining  the  truth  of 
every  criminal  charge,  especially  where 
life  is  involved,  may  be  regarded  as  a  rule 
of  law.     It  is  found  in  various  places  in 


the  Mosaic  code,  particularly  in  the  law 
respecting  idolatry  ;  Avhicli  does  not  inflict 
the  penalty  of  death  until  the  crime  "  be 
told  thee"  (viz.  in  a  formal  accusation), 
"and  thou  hast  hciud  of  it"  (upon  legal 
trial),  "  and  inquired  di/if/entli/,  and  behold 
it  be  true"  (satisfactorily  proved),  "and 
the  thing  cerkiin"  (beyond  all  reasonable 
doubt).  Deut.  xvii.  4.  It  was  a  law  of 
Agesilaus,  the  Spartan  king,  "  ut  ccqiiilibns 
votis,  su])er  vindicando  facinore,  in  divcrsa 
trahentibus,  pro  reo  judicium  slan-t,  quod 
videbatur  (Equissimum."  The  same  rule  was 
adopted  in  Athens.  Mascardus.  De  Probat. 
Vol.  1,  p.  87,  concl.  xxxvi.  n.  3.  The  rule 
of  the  Roman  Law  was  in  the  same  spirit. 
Satins  est,  impunitutn  relinqui  facinus  no- 
centis,  quam  innocentcm  damnare.  Dig. 
lib.  48,  tit.  19,  1.  5.  By  the  same  code, 
prosecutors  were  held  to  the  strictest  proof 
of  the  charge.  Sciant  cuncti  accusatores, 
eam  se  rem  deferre  in  publicam  notionem 
debere,  qute  raunita  sit  idoneis  testibus, 
vel  instructa  apcrtissimis  documentis,  vel 
indiciis  ad  probationem  indubitatis  el  luce  clari- 
oribus  expedita.  Cod.  lib.  4,  tit.  19,  1.  25. 
The  reason  given  by  the  civilians  is  one  of 
public  expediency.  In  dubio,  reum  magis 
[est  I  absolvendum  quiun  condemnandum  ; 
quod  absolutio  est  favorabilis,  condemnatio 
veio  odiosa ;  et  favores  ampliandi  sunt, 
odia  vei'o  restringenda.  Mascard.  iibi 
supra,  n.  7-10.  The  rule  in  the  text, 
quoted  from  Lord  Hale,  was  familiarly 
known  in  the  ancient  common  law  of  Eng- 
land. The  Mirror,  wiitten  at  a  very  early 
period,  reckons  it  among  the  abuses  of  the 
Common  Law,  "  that  Justices  and  their 
officers,  who  kill  people  by  false  judgment, 
be  not  destroyed  as  other  murderers ;  which 
King  Alfred  caused  to  be  done,  who  caus.d 
forty-four  Justices  in  one  year  to  be  hnngeJ 
for  their  false  judgment."  And  in  tliL'  ic- 
cital,  which  follows,  of  their  names  and 
offences,  it  is  said  that  "  he  hanged  /•>«- 
burne,  because  he  judged  Harpin  to  dii:, 


30  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

§  30.  The  proof  of  the  charge  in  criminal  causes  involves  the 
proof  of  two  distinct  propositions :  first,  that  the  act  itself  was 
done  ;  and,  secondly,  that  it  was  done  by  the  person  charged,  and 
by  none  other  ;  —  in  other  words,  proof  of  the  corpus  delicti,  and 
of  the  identity  of  the  prisoner.  It  is  seldom  that  either  of  these  can 
be  proved  by  direct  testimony,  and  therefore  the  fact  may  lawfully 
be  established  by  circumstantial  evidence,  provided  it  be  satisfac- 
tory.^ Even  in  the  case  of  homicide,  though  ordinarily  there 
ought  to  be  the  testimony  of  persons  who  have  seen  and  identified 
the  body,  yet  this  is  not  indispensably  necessary  in  cases  where  the 
proof  of  the  death  is  so  strong  and  intense  as  to  produce  the  full 
assurance  of  moral  certainty .^  But  it  must  not  be  forgotten  that 
the  books  furnish  deplorable  cases  of  the  conviction  of  innocent 
persons  from  the  want  of  sufficiently  certain  proofs  either  of  the 
corpus  delicti  or  of  the  identity  of  the  prisoner.^  It  is  obvious  that 
on  this  point  no  precise  rule  can  be  laid  down,  except  that  the  evi- 
dence "  ought  to  be  strong  and  cogent,"  *  and  that  innocence 
should  be  presumed  until  the  case  is  proved  against  the  prisoner, 
in  all  its  material  circumstances,  beyond  any  reasonable  doubt. 

§  31.  The  caution  necessary  to  be  observed  on  this  point  applies 
with  more  or  less  force  in  all  criminal  trials,  but  from  the  nature 
of  the  case  is  more  frequently  and  urgently  demanded  in  prosecu- 
tions for  homicide  and  for  larceny.  We  have  heretofore  ^  adverted 
to  the  possession  of  the  instruments  or  of  the  fruits  of  a  crime  as 
affording  ground  to  presume  the  guilt  of  the  possessor  ;  but  on 
this  subject  no  certain  rule  can  be  laid  down  of  universal  apj)lica- 
tioii ;  the  presumption  being  not  conclusive  but  disputable,  and 

whereas  the  Jury  were  in  doubt  of  their  of  the  death,  as  by  the  finding  and  idcnti- 

vcrdict ;    for,  in   doubtful  causes,  one  ought  fication  of  the  corpse,  or  of  criminal  vio- 

rather  to  save  than  to  condemn."     Mir.  j)p.  lence    adequate    to    produce    death,    and 

239,  240,  ch.  5,  sec.  1  ;  Ab.  108,  No.  IH.  exerted  in  such  a  manner  as  to  account 

See  Best,  Prin.  Evid.  jjp.  100, 101.     In  the  for  the  disappearance  of  the  body.     That 

spirit   of    the   maxim    in    the    text,    it   is  the    corpus    delicti,    in    murder,    has    two 

enacted   in    Connecticut,   tliat   "No  person  components, — death  as  the  result  and  the 

shall  be  convicted  of  any  crime,  by  law  criminal  agency  of  another  as  the  means, 

punishable  with   death,  without  the  testi-  It  is  only  where  there  is  direct  })roof  of 

mony  of  at  least  two  witnesses,  or  that  one  that  the  other  can  be  established  by 

wiiich  is  c<iuivalent  thereto."     Kev.  Stat,  circumstantial  evidence] 

1849,  tit.  0,  i?  I.')9.  ^  Mr.  Wills  mentions  several  instances 

i  See  Mittermaier,  Trait^  dc  la  Preuve  of  this  kind,  in  bis  interesting  Essay  on 

en  Matiere  Criminelle,  ch.  53,  p.  416.  Circumstantial  Evidence,  ch.  iv.  vii.     See 

^  Wills  on  Circiimst.  Evid.  pp.  157, 162.  also  Wharton's  Am.  Crim.  Law,  pp.  284, 

An  example  of  this  is  in   Uex  r.  Hind-  285  (2d  ed.). 

marsh,  2  Leach,  C.  C.  751.     [*  In  Ruloff  *  Per  Best,  J.,  in  Rex  v.  Burdett,  4  B. 

V.  The  People,  18  N.  Y.  R.  179,  it  is  held,  &  Aid   123. 

that,  in  order  to  warrant  a  conviction  of  ^  See  an<e,  Vol.  1,  §  34. 
murder,  there  must  be  direct  proof,  either 


PART,  v.]  GENERAL  PRINCIPLES.  31 

therefore  to  be  dealt  with  by  the  jury  alone,  as  a  mere  inference 
of  fact.  Its  force  and  value  will  depend  on  several  considerations. 
In  the  first  place,  'if  the  fact  of  possession  stands  alone,  wholly  un- 
connected with  any  other  circumstances,  its  value  or  persuasive  power 
is  very  slight ;  for  the  real  criminal  may  have  artfully  placed  the 
article  in  the  possession  or  upon  the  premises  of  an  innocent  per- 
son, the  better  to  conceal  his  own  guilt ;  whether  it  be  the  instru- 
ment of  homicide,  burglary,  or  other  crime,  or  the  fruits  of  rob- 
bery or  larceny  ;  or  it  may  have  been  thrown  away  by  the  felon, 
in  his  flight,  and  found  by  the  possessor,  or  have  been  taken  away 
from  him,  in  order  to  restore  it  to  the  true  owner ;  or  otherwise 
have  come  lawfully  into  his  possession.^  It  will  be  necessary, 
therefore,  for  the  prosecutor  to  add  the  proof  of  other  circumstan- 
ces indicative  of  guilt,  in  order  to  render  the  naked  possession  of 
the  thing  available  towards  a  conviction  ;  such  as  the  previous 
denial  of  the  possession  by  the  party  charged,  or  his  refusal  to  give 
any  explanation  of  the  fact,  or  giving  false  or  incredible  accounts 
of  the  manner  of  the  acquisition  ;  or  that  he  has  attempted  to  dis- 
pose of  it,  or  to  destroy  its  marks  ;  or  that  he  has  fled  or  abscond- 
ed, or  was  possessed  of  other  stolen  property,  or  pick-lock  keys, 
or  other  instruments  of  crime  ;  or  was  seen,  or  his  foot-prints  or 
clothes  or  other  articles  of  his  property  were  found  near  the  place, 
and  at  or  near  the  time  when  the  crime  was  committed  ;  or  other 
circumstances  naturally  calculated  to  awaken  suspicion  against 
him,  and  to  corroborate  the  inference  of  guilty  possession. ^ 

§  32.  In  the  next  place,  in  order  to  justify  the  inference  of  guilt 
from  the  possession  of  the  instruments  or  fruits  of  crime,  it  is  im- 
portant that  it  be  a  recent  possession,  or  so  soon  after  the  commis- 
sion of  the  crime  as  to  be  at  first  view  not  perfectly  consistent  with 
innocence.  In  the  case  of  larceny,  the  nature  of  the  goods  is  ma- 
terial to  be  considered  ;  since,  if  they  are  such  as  pass  readily 
from  hand  to  hand,  the  possession,  to  authorize  any  suspicion  of 
guilt,  ought  to  be  much  more  recent  than  though  they  were  of  a 
kind  that  circulates  more  slowly,  or  is  rarely  transmitted.  Thus, 
the  possession  was  held  sufficiently  recent  to  hold  the  prisoner  to 
account  for  it,  where  the  property  stolen  consisted  of  two  unfin- 
ished ends  of  woollen  cloth,  of  about  twenty  yards  each,  found  with 
the  prisoner  two  months  after  they  were  missed  by  the  owner.^ 

1  Best  on  Presnmpt.  §  224-226 ;  Wills  Alison's  Crim.  Law  of  Scotland,  pp.  320- 
on  Circumst.  Evid.  ch.  3,  §  4.  322. 

2  Wills  on  Circumst.  Evid.  ch.  3,  §  4  ;         3  Rex  v.  Partridge,  7  C  &  P.  551.    And 


32  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

But  where  the  subject  of  larceny  was  an  axe,  a  saw,  and  a  mattock, 
found  in  the  possession  of  the  prisoner  three  months  after  they 
were  missed,  the  learned  Judge  directed  an  acquittal ;  ^  and  where 
a  shovel,  which  had  been  stolen,  was  found  six  months  afterwards 
in  the  house  of  the  prisoner,  who  was  not  then  at  home,  the 
learned  Judge  refused  to  put  the  prisoner  upon  his  defence.^  An 
acquittal  was  also  directed  where  sixteen  months  had  elapsed  since 
the  loss  of  the  goods.^  But  in  other  cases  the  whole  matter  has 
properly  been  left  at  large  to  the  Jury,  it  being  their  province  to 
consider  what  weight,  if  any,  ought  to  be  given  to  the  evidence  ;  * 
the  general  rule  being  this  :  that  where  a  man,  in  wliose  posses- 
sion stolen  property  is  found,  gives  a  reasonable  account  of  how 
he  came  by  it,  it  is  incumbent  on  the  prosecutor  to  show  that  the 
account  is  false. ^ 

§  33.  But,  to  raise  the  presumption  of  guilt  from  the  possession 
of  the  fruits  of  the  instruments  of  crime  by  the  prisoner,  it  is  ne- 
cessary that  they  be  found  in  his  exclusive  possession.  A  construc- 
tive possession,  like  constructive  notice  or  knowledge,  though  suf- 
ficient to  create  a  civil  liability,  is  not  sufficient  to  hold  the  party 
responsible  to  a  crimiyial  charge.  He  can  only  be  required  to  ac- 
count for  the  possession  of  things  which  he  actually  and  knowing- 
ly possessed  ;  as,  for  example,  where  they  are  found  upon  his  per- 
son, or  in  his  private  apartment,  or  in  a  place  of  which  he  kept  the 
key.  If  they  are  found  upon  premises  owned  or  occupied  as  well 
by  others  as  himself,  or  in  a  place  to  which  others  have  equal 
facility  and  right  of  access,  there  seems  no  good  reason  why  he, 
rather  than  they,  should  be  charged  upon  this  evidence  alone.  If 
the  prisoner  is  charged  as  a  receiver  of  stolen  goods,  which  he  ad- 
mits that  he  bought,  and  they  arc  subsequently  found  in  his  house, 
and  are  proved  to  have  been  stolen,  this  evidence  has  been  held 
sufficient  to  justify  the  Jury  in  convicting  him,  without  proof  of  his 

see  The  State  r.  Bennett,  3  Brevard,  514  ;  It  is  sufficient  for  the  prisoner  to  raise  a 

Const.  R.  692  ;  Cockin's  case,  2  Lewin,  C.  reasonable  doubt  of  his  f^uilt.     Tiie  State 

C.  235  ;  The  State  u.  Jones,  3  Dev.  &  Bat.  v.   Merrifk,    19  Maine,   398;    1    Leading 

122.  Crim.    Cases,   360.      [But  see   Ref,^ina  v. 

1  Rex  y.  Adams,  3  C.  &  P.  600 ;  Hall's  Wilson,  1   Deass.  &  Bell,  157;    s.  c.  40 

case,  1  Cox,  C.  C.  231.  Enf,^  Law  &  Eq.    Rep.]      (*  Whore   the 

^  Ref;ina  v.  Cruttenden,  6  Jur.  267.  circumstances  attendinf;  recent  pos.scssion 

*  Anon.,  7  Monthly  Law  Maf;.  58.  forbid  the  inference  that  the  prisoner  com- 

*  Rex  i;  Hewlett,  2  Rnss.  on  Crimes,  mitted  the  larceny,  the  possession,  if  unex- 
728,  note  by  Greaves.  And  see  The  State  plained,  is  evidence  that  he  received  the 
V.  Brewster,  7  Verm.  122  ;  The  State  v.  stolen  property  knowinj;  it  to  have  been 
Weston,  9  Conn.  527  ;  The  Common-  stolen.  Keg.  v.  Langinead,  9  Cox,  C.  C. 
wealth  V.  Mvers,  Addis.  320.  464.] 

6  Rcgina  r.  Crowhurst,  1  C.  &  K.  370. 


PART  v.]  GENERAL   PRIXCIPLES.  33 

having  actually  received  them,  or  of  his  having  been  at  the  house 
from  which  they  were  taken.^ 

§  34.  In  regard  to  the  supjn'ession,  fabrication,  or  destruction  of 
evidence,  the  common  law  furnishes  no  conclusive  rule.  The  pre- 
sumption, as  we  have  seen  in  a  former  volume,^  is  in  such  cases 
strong  against  the  party  ;  for  the  motive  of  so  doing  is  generally  a 
consciousness  of  guilt ;  but  the  presumption  of  guilt  is  not  conclu- 
sive ;  because  innocent  persons,  under  the  influence  of  terror  from 
the  danger  of  their  situation,  or  induced  by  bad  counsel,  have 
sometimes  been  led  to  the  simulation  or  destruction  of  evidence, 
or  to  prevarication  and  other  misconduct,  the  usual  concomitants 
of  crime.  But  the  burden  of  proof  in  these  cases  is  on  the  pris- 
oner, to  explain  his  conduct  to  the  satisfaction  of  the  Jury.^ 

[*  The  introduction  of  false  or  fabricated  evidence  in  defence  is 
always  regarded  as  an  inferential  admission  of  guilt,  although  not 
of  a  conclusive  character.  A  case  is  named  in  the  books  where 
one  was  indicted  for  the  murder  of  a  girl  nine  years  of  age,  and,  to 
make  out  his  defence,  did  attempt  to  substitute  another  girl  of  sim- 
ilar appearance,  and,  on  the  detection  of  this  fraud,  was,  by  its 
force,  convicted  and  executed,  when  it  subsequently  turned  out 
that  the  supposed  murdered  girl  was  still  living.  And  such  testi- 
mony must  always  be  liable  to  more  or  less  uncertainty  in  its  in- 
trinsic weight.  But  it  seems  to  be  admissible  as  a  circumstance 
tending  to  show  the  guilt  of  the  accused.  But  like  other  evidence, 
of  the  admissions,  and  the  conduct  of  the  prisoner,  in  regard  to  the 
main  charge,  their  force  depends  so  much  upon  the  temperament, 
education,  and  habits  of  life  and  business  of  the  accused,  that  no 
very  great  reliance  is  to  be  placed  upon  this  kind  of  evidence,  as  it 
has  no  direct  tendency  to  establish  the  main  charge.  And  if  the 
evidence,  in  regard  to  the  alleged  falsehood  or  fabrication,  be  doubt- 
ful, it  is  entitled  to  no  weight.  To  be  entitled  to  any  force,  as  it 
is  only  circumstantial,  and  collateral  to  the  main  issue,  its  truth 
should  be  established  beyond  all  question  or  cavil.*] 

1  Regina  v.  Matthews,  1  Denison,  C.  C.  ^  See,  on  this  subject.  Wills  on  Cir- 
596  ;  14  Jur.  513.  [See  Regina  v  Smith,  cumst.  Evid.  eh.  3,  §  7  ;  Best  on  Presump- 
33  Eng.  Rep.  531  ;  and  Regina  v.  Hobson,  tions,  §  145  -  149.  Mr.  Best  well  suggests, 
lb.  527.]  [*  On  an  indictment  for  receiv-  that  cases  have  probably  occurred,  where 
ing  goods,  kno^ving  them  to  have  been  the  accused,  though  innocent,  could  not 
stolen,  the  mere  fact  that  they  were  found  avail  himself  of  his  real  defence  without 
on  the  prisoner's  premises  is  not  sufficient  criminating  others  whom  he  is  anxious 
to  confirm  the  evidence  of  the  theft,  so  far  not  to  injure,  or  criminating  himself  with 
as  to  make  it  proper  to  convict.  Reg.  v.  respect  to  other  transactions.  Ibid.,  §  149, 
Pratt,  4  F.  &  F.  315.]  note  (a). 

2  Ante,  Vol.  1,  §  37.  [*  *  State  v.  WUliams,  27  Vt.  226.] 
VOL.   III.                               3 


34  LAW   OF  EVIDENCE  IN   CRBIINAL  CASES.  [PART  V, 

§  35.  It  may  here  be  added,  as  a  further  preliminary  consider- 
ation, that  by  the  Constitution  of  the  United  States,  no  person  shall 
"  he  subject,  for  the  same  offence,  to  he  tivice  put  in  jeopardy  of  life 
or  limh."  ^  A  similar  provision  exists  in  the  constitutions  of  most 
of  the  States.  But  this  rule  has  a  deeper  foundation  than  mere 
positive  enactment ;  it  being,  as  Mr.  Justice  Story  remarked,  im- 
bedded in  the  very  elements  of  the  common  law,  and  uniformly 
construed  to  present  an  insurmountable  barrier  to  a  second  prose- 
cution, where  there  has  been  a  verdict  of  acquittal  or  conviction, 
regularly  had,  upon  a  sufficient  indictment.  It  is  upon  the  ground 
of  this  universal  maxim  of  the  common  law,  that  the  pleas  of 
autrefois  acquit,  and  of  autrefois  convict,  are  allowed  in  all  criminal 
cases.2  jf  lY^Q  former  acquittal  was  for  want  of  substance  in  set- 
ting forth  the  offence,  or  for  want  of  jurisdiction  in  the  court,  so 
that  for  either  of  these  causes  no  valid  judgment  could  have  been 
rendered,  it  is  no  bar  to  a  second  prosecution  ;  ^  but  though  there 
be  error,  yet  if  it  be  in  the  process  only,  the  acquittal  of  the  party 
is  nevertheless  a  good  bar.  The  sufficiency  of  the  bar  is  tested  by 
ascertaining  whether  he  could  legally  have  been  convicted  upon 
the  previous  indictment ;  for  if  he  could  not,  his  life  or  liberty  was 
not  in  jeopardy.^ 

§  36.  The  former  judgment,  in  these  cases,  is  pleaded  with  an 
averment  that  the  offence  charged  in  both  indictments  is  the 
same  ;  and  the  identiUj  of  the  offence,  which  may  be  shown  by 
parol  evidence,  is  to  be  proved  by  the  prisoner ."^    This  may  gen- 

1  Const.  U.  S.  Amendm.  art.  5.  is  pood  imtil  reversed.     This  rule  of  crim- 

2  United  States  v.  Gibcrt,  2  Suran.  42.  iniil  law  is  well  settled.  It  was  the  right 
And  see  Vaux's  case,  4  Rep.  44  ;  4  Bl.  and  privilege  of  the  defendant  to  bring  a 
Comm.  335 ;  1  Kuss.  on  Crimes,  837,  note  writ  of  error,  and  reverse  that  judgment, 
by  Greaves ;  Wharton,  Am.  Crim.  Law,  But  he  well  might  waive  the  error,  and 
205  et  seq.  (2d  ed.) ;  1  Chitty,  Crim.  Law,  submit  to  and  perform  the  sentence,  with- 
452;  Commonwealth  v.  Cunningham,  13  out  danger  of  being  subjected  to  another 
Mass.  245  ;  Commonwealth  v.  Goddard,  conviction  and  punishment  for  the  same 
Id.  455  ;  Commonwealth  v.  Roby,  12  Pick,  offence. 

496,   502;    The   People   ;;.    Goodwin,   18  *  Ibid. ;  2  Hawk.  P.  C.  ch.  35,  §  8  ;  Id. 

Johns.  187,  201.     The  rule  in  civil  cases  ch.  36,  §  1,  10,  15;  2  Hale,  P.  C.  246- 

is  the  same.     Nemo  debet  bis  vexari,  pro  248  ;  Commonwealth  v.  Goddard,  supra ; 

una  et  eadem  causa.     Broom's  Maxims,  Whart.  Amer.  Crim.  Law,  190-204  ;  The 

135.     And  see  anfe.  Vol.  1,  §  522-539.  People  v.  Barrett,   1  Johns.  66;  Rex  v. 

8  In  Massachusetts,  it  has  been  held,  Emden,  9  East,  437  ;    Commonwealth  v. 

that  where  an  illegal  sentence  has  been  Peters,  12  Met.  387  ;  Rcgina  v.  Drury,  18 

terved  out,  it  shall  have  at  least  the  effect  to  Loiw  Journal,  189  ;  3  Car.  &  Kir.  190  ;  3 

protect  the  defendant  from  another  punish-  Cox,  C.  C.  544. 

ment  for  the  very  same  thing,  although  ^  I)uncan    v.    The    Commonwealth,   6 

imposed  according  to  more  accurate  for-  Dana,  295.     An  approved   form  of  this 

malties.     Commonwealth  v.  Loud,  3  Met.  plea  is  given  at  large  in  Rex  v.  Sheen,  2 

328.      The  judgment   that  the  defendant  C.  &  P.  6.34  ;   and   in   Regina  v.  Bird,  5 

was    guilty,    said    Putnam,   J.,   although  Cox,  C.  C.  11  ;    2  Eng.  Law  &  Eq.  Rep. 

upon  proceedings  which  were  erroneous,  439  ;  1  Temple  &  Mew.  C.  C.  438,  note ; 


PART  v.]  GENERAL   PRINCIPLES.  35 

erally  be  done  by  producing  the  record,  and  showing  that  the  same 
evidence,  which  is  necessary  to  support  the  second  indictment, 
would  have  been  admissible  and  sufficient  to  procure  a  legal  con- 
viction upon  the  first.^     A  primd  facie  case  on  this  point  being 
made  out  by  the  prisoner,  it  will  be  incumbent  on  the  prosecutor 
to  meet  it  by  proof  that  the  oifence,  chjirged  in  the  second  indict- 
ment, was  not  the  same  as  that  charged  in  the  first.^     It  is  not 
necessary  that  the  two  charges  should  be  precisely  alike  in  form, 
or  should  correspond  in  things  which  are  not  essential  and  not 
material  to  be  proved  ;  the  variance,  to  be  fatal  to  the  plea,  must 
be  in  matter  of  substance.     Thus,  if  one  is  indicted  for  murder 
committed  on  a  certain  day,  and  be  acquitted,  and  afterwards  be 
indicted  for  the  murder  of  the  same  person  on  a  different  day ; 
the  former  acquittal  may  be  pleaded  and  shown  in  bar,  notwith- 
standing the  diversity  of  days  ;  for  the  day  is  not  material ;  and 
the  offence  can  be  committed  but  once.^     But  if  one  be  indicted 
of  an  offence  against  the  peace  of  the  late  king,  and  acquitted,  and 
afterwards  be  indicted  of  the  same  offence  against  the  peace  of  the 
now  king  ;  the  former  acquittal  cannot  be  shown  in  bar  of  the  sec- 
ond indictment ;  for  evidence  of  an  offence  against  the  peace  of 
one  king  cannot  be  admitted  in  proof  of  the  like  charge  against 
the  peace  of  another  king.*     Thus,  also,  in  regard  to  the  person 
slain  or  injured,  if  he  be  described  by  different  names  in  the  two 
indictments,  and  the  identity  of  the  person  be  averred  and  proved, 
he  being  known  as  well  by  the  one  name  as  the  other,  it  is  a  good 
bar.^     So,  if  one  be  indicted  for  murdering  another,  by  compelling 
him  to  take,  drink,  and  swallow  down  a  certain  poison  called  oil 
of  vitriol,  whereof  he  is  acquitted  ;  and  he  be  again  indicted  for 
murdering  the  same  person  by  administering  to  him  the  oil  of 
vitriol,  and  forcing  him  to  take  it  into  his  mouth,  so  that  by  the 

Train  and  Heard's  Precedents  of  Indict-  the  first  of  tn-o  indictments  for  keeping  a 

ments,  481,  484.  gaming-house   should    bar    the  other,   it 

1  Archbold  on  Crim.  PI.  87  ;  Rex  v.  must  appear  in  proof  that  the  keeping  al- 
Emden,  9  East,  437  ;  Rex  v.  Clark,  1  B.  leged  in  the  two  was  without  intermission  ; 
&  Bing.  473  ;  Rex  v.  Taylor,  3  B.  &  C.  that  the  dates  set  out  in  the  indictment 
502  ;  1  Russ.  on  Crimes,  832  ;  Common-  show  no  intermission  is  not  sufficient,  as 
•wealth  V.  Roby,  12  Pick.  496;  Rex  v.  under  neither  need  the  time  proved  as  laid, 
Vandercomb,  2  Leach,  C.  C.  (4th  ed.)  and  it  maybe  that  there  was  an  interval 
768.  The  counsel  in  the  case  may  be  ex-  between  the  times  laid.  State  v.  Lindlcy, 
amined,  to  show  from  his  notes,  taken  at  14  Ind.  431.] 

the  former  trial,  what  was  the  e\idence  *  Rex  v.  Taylor,  3  B.  &  C.  502 ;  2  Hawk, 

then  given.     Regina  v.  Bird,  uhi  supra.  P.  C.  ch.  25,  §  92. 

2  Regina  v.  Bird,  5  Cox,  C.  C.  11 ;  2  &  Rex  v.  Sheen,  2  C.  &  P.  634 ;  2  Hale, 
Eng.  Law  &  Eq.  Rep.  439.  P.  C.  244. 

8  2  Hale,  P.  C.  244.     [*  In  order  that 


36  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

disorder,  choking,  suffocating,  and  strangling  occasioned  tliereby 
he  languished  and  died  ;  the  former  acquittal  is  a  good  bar ;  for 
the  substance  of  the  charge  in  both  cases  is  poisoning.^     The  same 
principle  applies  to  all  other  criminal  charges,  the  rule  being  uni- 
versal, that  if  the  first  indictment  were  such  that  the  prisoner 
could  have  been  legally  convicted  upon  it,  by  any  evidence  legally 
admissible,  though  sufficient  evidence  was  not  in  fact  adduced,  his 
acquittal  upon  that  indictment  is  a  bar  to  a  second  indictment  for 
the  same  offence.^    This  rule  also  applies  wherever  the  first  indict- 
ment was  for  a  greater  offence,  and  the  second  is  for  a  less  offence, 
which  was  included  in  the  greater.     Thus,  if  the  first  indictment, 
of  which  the  prisoner  was  acquitted,  was  for  burglary  and  larceny, 
and  he  be  afterwards  indicted  for  the  larceny  only  ;   or  if  he  were 
indicted  of  any  other  compound  offence,  such  as  robbery,  murder, 
or  the  like,  and  acquitted,  and  afterwards  he  be  indicted  of  any 
less  offence  which  was  included  in  the  greater,  such  as  larceny 
from  the  person,  manslaughter,  or  the  like  ;  he  may  show  the  ac- 
quittal upon  the  first  indictment,  in  bar  of  the  second  ;  for  he 
might  have  been  convicted  of  the  less  offence,  upon  the  indictment 
for  the  greater.^     But  if,  upon  the  first  indictment,  he  could  not 
have  been  convicted  of  the  offence  described  in  the  second,  then 
an  acquittal  upon  the  former  is  no  bar  to  the  latter.     Thus,  it  has 
been  held,  that  a  conviction,  upon  an  indictment  for  an  assault 

1  Rex  V.  Clarke,  1  Brod.  &  Bing.  473 ;  and  »  1  Russ.  on  Crimes,  838,  note ;  2  Hale, 

see  ante,  Vol.  1,  §  65.    \K  party  was  indict-  P.  C.  246  ;  1  Chitty,  Crim.  Law,  455  ;  The 

ed  for  stealing  a  pair  of  boots  laid  as  the  State  v.  Standifcr,  5  Port.  523  ;  The  Peo- 

property  of  A.,  and  acquitted.     She  was  pie  v.  McGowan,   17   Wend.  386.      [*A 

then  indicted  again  for  stealing  the  same  prosecution  for  any  part  of  a  single  crime 

property,  laid  as  the  property  of  B.,  and  she  — as  for  the  larceny  of  part  only  of  the 

plead  the  former  acquittal.     Held,  not  a  articles  taken  at  one  time  —  will  bar  any 

good  defence.     Regina  v.  Green,  37  Eng.  further  prosecution  for  the  larceny  of  the 

Law  &  Eq.  Hep.  597]    [*  An  acquittal  of  a  remaining  articles.     Jackson  c.  State,  14 

charge  of  being  a  common  seller  of  intoxi-  Ind.  327.     And  when  one  is  indicted  for 

eating  liquors  from  a  certain  day  to  a  cer-  murder  in  the  first  degree,  and  on  trial  is 

tain  other  day,  is  no  bar  to  a  prosecution  for  convicted  of  murder  in  the  second  degree, 

asingleunlawfulsaleof  intoxicating  liquors  and  a  new  trial  is  ordered  at  his  instance, 

on  a  day  between  tiie.se  two,  notwithstand-  he  cannot  be  legally  tried  again  upon  the 

ing  this  single  sale  may  have  been  in  evi-  charge  of  murder  in  the  first  degree,  but 

dence  before  the  tribunal  that  heard  and  only  upon  the  charge  of  murder  in  the 

determined  the  alleged  ofR-uce  of  being  a  second  degree.    State  v.  Ross,  29  Miss.  32  ; 

common  seller.     Commonwealth  v.  Hud-  Stater.  Tweedy,  11  Iowa,  350;  hwt  quaere 

son,  14  Gray,  11.    And  so,  a  conviction  of  in  Livingston's  case,   14  Gratt.  Va.  592. 

keeping  a  shop  open  on  the  Lord's  day  is  And  where  an  indictment  contained  nine 

no  bar  to  an  indictment  for  a  nuisance  in  counts  for  embezzlement,  and  fourteen  for 

keeping  the  same  shop  at  the  same  time  for  larceny,  it  was  held,  that  a  general  verdict 

the  illegal  side  and  keeping  of  intoxicating  "guilty  of  embezzlement "  acted  as  an  ac- 

liquors.    Commonwealth  v.  Shea,  14  Gray,  quittal  upon  the  charge  of  larceny,  and  was 

386  ;  Commonwealth  t.  Bubser,  lb.  83.]"  a  bar  to  any  sul)se(iuent  i)rosecution  there- 

2  Ibid.  ;  Rex  v.  Slicen,  2  C.  &  P.  634.  for ;  Seldcn,  J.,  dissenting.     Guenther  v. 

And  sec  The  State  r.  Ray,  1  Rice,  1.  People,  24  N.  Y.  100.] 


PART  V.J  GENERAL  PRES^CIPLES.  37 

with  intent  to  commit  murder,  is  no  bar  to  an  indictment  for  the 
murder  ;  for  the  offences  are  distinct  in  their  legal  character,  the 
former  being  a  misdemeanor,  and  the  latter  a  felony  ;  and  in  no 
case  could  the  party,  on  trial  for  the  one,  be  convicted  of  the 
other.^ 

§  37.  The  constitutional  provision^  that  no  person  shall  be  sub- 
ject, for  the  same  offence,  to  be  twice  put  in  jeopardy  of  life  or  limb, 
has  been  variously  interpreted  by  different  tribunals  ;  for  while 
some  have  held  that  it  means  nothing  more  than  the  common-law 
maxim,  that  no  man  shall  be  tried  twice  for  the  same  offence,  oth- 
ers have  held,  that,  whenever  the  Jury  are  charged  with  the  pris- 
oner upon  a  good  indictment,  he  is  put  in  jeopardy  ;  and  that  he 
cannot  be  again  put  on  trial,  unless  the  verdict  was  prevented  by 
the  act  of  God,  such  as  the  sudden  illness  or  death  of  a  Juror,  or 
the  illness  of  the  prisoner,  or  by  some  other  case  of  urgent  and  im- 
perious necessity,  arising  without  the  fault  or  neglect  of  the  gov- 
ernment. Whether  the  impossibility  of  agreement  by  the  Jury, 
unless  by  the  physical  coercion  of  famine  or  exhaustion,  constitutes 
such  a  case  of  urgent  necessity,  justifying  the  court,  in  the  exer- 
cise of  its  discretion,  to  discharge  the  Jury,  and  hold  the  prisoner 
for  a  second  trial,  is  also  a  point  on  which  there  has  been  much 
diversity  of  opinion  ;  but  the  affirmative,  being  held  by  the  Su- 
preme and  Circuit  Courts  of  the  United  States,  as  well  as  by  sev- 
eral of  the  State  courts,  may  be  now  regarded  as  the  better 
opinion. 2 

1  Ibid.  This  distinction  is  clearly  stated  2  Pick.  521 ;  The  People  v.  Olcott,  2  Johns, 
and  illustrated  upon  principle  and  authori-  Cas.  301  ;  The  People  v.  Goodwin,  18  Id. 
ty  in  The  Commonwealth  v.  Roby,  12  Pick.  187,  200  -  205  ;  Commonwealth  v.  Olds,  5 
496.  But  in  The  State  v.  Shepard,  7  Conn.  Lit.  140  ;  Moore  v.  The  State,  1  Walk. 
54,  it  was  held,  that  a  former  conviction  on  134  ;  The  State  v.  Hall,  4  Halst.  256. 
an  indictment  for  an  assault  with  intent  to  In  England,  very  recently,  in  a  well-con- 
commit  a  rape,  was  a  good  bar  to  an  indict-  sidcred  case,  the  same  doctrine  was  held, 
ment  for  a  rape ;  for  otherwise,  the  party  Regina  v.  Newton,  13  Jur.  606 ;  13  Q.  B. 
might  be  punished  twice  for  a  part  of  the  716  ;  3  Cox,  C.  C  489.  See  also  Conway 
facts  charged  in  the  second  indictment,  r.  Regina,  7  Irish  Law  Rep.  149.  See 
In  this  case,  the  case  of  The  Common-  contra,  Commonwealth  e.  Cook,  6  S.  &  R. 
wealth  V.  Cooper,  15  Mass.  187,  was  cited  577;  Commonwealth  v.  Clue,  3  Rawle, 
and  relied  on  by  the  Court ;  but  it  has  498 ;  The  State  v.  Garrigues,  1  Hayw. 
since  been  overruled,  in  12  Pick.  507.  Ideo  241  ;  Spier's  case,  1  Dev.  491  ;  Mahala 
quaere.  [An  acquittal  on  a  charge  of  man-  v.  The  State,  10  Yerg.  532;  The  State 
slaughter  may  be  pleaded  in  bar  of  an  in-  v.  Ned,  7  Port.  188.  See  Wharton's 
dictment  for  murder  ;  ppr  Erie,  J.,  Regina  Am.  Crim.  Law,  p.  205-215,  where  this 
T.  Gaylor,  40  Eng.  Law  &  Eq.  Rep.  559.]  subject    is    fully    considered.      Qmere,  if, 

2  United  States  v.  Perez,  9  Wheat.  579 ;  after  the  Jury  have  retired  to  deliberate 
United  States  v.  Coolidge,  2  GaU.  364 ;  upon  their  verdict,  one  of  them  escapes, 
United  States  v.  Gibert,  2  Sumner,  19,  through  the  officer's  negligence,  so  that 
52-62;  United  States  «.  Shoemaker,  2  a  verdict  cannot  be  rendered,  can  the 
McLean,  114;  United  States  v.  Haskell,  prisoner  be  again  tried  ?  [*  See  opinion  of 
4  Wash.  40S  ;  Commonwealth  v.  Bowden,  Selden,  J.,  in  Guenther  v.  People,  24  N.  Y. 
9  Mass.  494 ;   Commonwealth  v.  Purchase,  100. 


38  LAW   OF  EVIDENCE  IN   CRimNAL   CASES.  [PAET  V. 

§  38.  Though  the  general  rule  is  thus  strongly  held  against  a 
second  trial  in  criminal  cases,  yet  it  has  always  been  held,  that,  to 
the  plea  of  autrefois  acquit,  or  autrefois  convict,  in  prosecutions  for 
misdemeanors,  it  is  a  sufficient  answer,  that  the  former  acquittal 
or  conviction  was  procured  by  the  fraud  or  evil  practice  of  the 
prisoner  himself.^  It  is  not  necessary  to  the  validity  of  these  pleas 
in  any  criminal  case,  that  a  judgment  should  have  been  entered 
upon  the  verdict ;  ^  but  if  the  judgment  have  been  arrested,  the 
plea  cannot  be  supported.^ 

§  39.  In  trials  for  felony,  admissions  of  fact,  which  the  go>?ern- 
ment  is  bound  to  prove,  are  not  permitted,  unless  when  made  at 
the  trial,  in  open  court,  by  the  prisoner  or  his  counsel.  Thus, 
where,  before  the  trial,  which  was  for  perjury,  it  had  been  agreed 
by  the  attorneys  on  both  sides,  that  the  formal  proofs  on  the  part 
of  the  prosecution  should  be  dispensed  with,  and  that  this  part  of 
the  case  for  the  prosecution  should  be  admitted.  Lord  Abinger, 
C.  B.,  refused  to  allow  the  admission  unless  it  were  repeated  in 
court ;  and  this  being  declined,  the  prisoner  was  acquitted.*  But 
where  in  a  previous  case,  upon  a  trial  for  counterfeiting,  it  was 
proposed  by  the  counsel  for  the  prosecution  that  the  testimony  just 
before  given  on  the  trial  of  the  same  prisoner  on  another  indict- 
ment for  the  same  offence  should  be  admitted  without  calling  the 
witnesses  again,  and  this  was  consented  to  by  the  prisoner's  coun- 
sel, Patteson,  J.,  doubted  whether  it  could  be  done  in  cases  of  fel- 
ony, though  in  cases  of  misdemeanor  it  might ;  and  therefore  he 
directed  the  witnesses  to  be  called  and  resworn,  and  then  read  over 
his  own  notes  of  their  testimony,  to  which  they  assented.^ 

We  now  proceed  to  consider  the  evidences  appropriate  to  distinct 
offences. 

1  1    Chitty,    Crim.   Law,  657;  Eex  v.  different  proposition,  that  a  jndpmcnt  must 

Bear,  1  Salk.  646  ;  Rex  v.  Furser,  Sayer,  be  entered  on  tiie  verdict  to  maintain  the 

90;  hex  ».  Davis,  1   Show.  336;  Regina  plea.     But  the  dictum  of  the  Chief  Justico 

r.  Coke,  12  Mod.  9  ;  Anon.,  1  Lev.  9  ;  Rex  thus  construed  would  not  be  law  ;  hut  if 

V.   Mawbey,   6  T.  R.  619;  The  State  v.  rendered  in  connection  with  the  case  then 

Brown,  12  Conn.  .54  ;  The  State  v.  Little,  at  bar,  is  well  cnou^rh  siiiijiorted.     And  it 

1  N.  Hamp.  257  ;  Commonwealth  c.  Kin-  is  to  be  remarked  that  the  case  as  rcjiorted 

Hey,  2  Virf,'.  Cas.  139.  in  5  Cox,  C.  C.  Ill,  112,  contains  no  ex- 

-The   State  v.  Norvell,  2   Yerg.   24;  pression  from  which  such  conclusion  may 

Mount  V.  The  State,  14  Ohio  R.  295.    The  bo  drawn.     See,  also,  this  case  as  reported 

text  is  to  be  taken,  perhaps,  with  the  quali-  in  Temple  &  Mew.  C.  C.  431. 

fication  that  the  judfjmmt  be  properlii  ur-  »  Commonwealth  v.  Purchase,  2  Pick. 

rested.     The   case  of  Re^rina  v.    Reiil,   as  526. 

reported  in  1  Kng.  Law  and  Eq.  Rep.  600,  *  Rcffina  v.  Thornhill,  8  C.  &  P.  575. 

per  Jervis,  C.  J.,  would  seem  to  establish  a  ^  Rex  v.  Foster,  7  C  &  P.  495. 


PART  v.]  ACCESSORY.  39 


AGCESSORY. 

[*  §  40.  Distinction  between  principal  and  accessory. 

41.  Principal  in  second  degree  must  aid  and  abet  the  perpetrator. 

42.  What  makes  one  accessory  before  the  fact. 

43.  No  accessories  before  the  fact  in  treason  nor  in  crimes  under  the  degree  of  felony. 

44.  Sufficient  if  instructions  of  accessory  are  substantially  complied  with. 

45.  Accessory  not  chargeable  if  he  repents  and  countermands  order  before  execution. 

46.  Pi'incipal  must  be  convicted  before  trial  of  accessory. 

47.  Accessories  after  the  fact  defined. 

48.  When  husband  or  wife  may  be  accessory  after  the  fact  to  the  other. 

49.  What  must  be  charged  in  the  indictment. 

50.  Proof  of  the  offence.] 

§  40.  Persons  participating  in  a  crime  are  either  Principals  or 
Accessories.  If  the  crime  is  a  felony,  they  are  alike  felons. 
Principals  are  such  either  in  the  first  or  second  degree.  Princi- 
pals  in  the  first  degree,  are  those  who  are  the  immediate  perpetra- 
tors of  the  act.  Principals  in  the  second  degree,  are  those  who  did 
not  with  their  own  hands  commit  the  act,  but  were  present,  aiding 
and  abetting  it.  It  is  not  necessary,  however,  that  this  presence 
be  strict,  actual,  and  immediate,  so  as  to  make  the  person  an  eye 
or  ear  witness  of  what  passes  ;  it  may  be  a  constructive  presence. 
Thus,  if  several  persons  set  out  in  concert,  whether  together  or 
apart,  upon  a  common  design  which  is  unlawful,  each  taking  the 
part  assigned  to  him,  some  to  commit  the  act,  and  others  to  watch 
at  proper  distances  to  prevent  a  surprise,  or  to  favor  the  escape  of 
the  immediate  actors  ;  here,  if  the  act  be  committed,  all  are  in  the 
eye  of  the  law  present  and  principals  ;  the  immediate  perpetrar 
tors  in  the  first  degree,  and  the  others  in  the  second.^  But  if  the 
design  is  only  to  commit  a  small  and  inconsiderable  trespass,  such 
as  robbing  an  orchard,  or  the  like,  and  one  of  them  on  a  sudden 
affray,  without  the  knowledge  of  the  others,  commits  a  felony, 
such,  for  example,  as  killing  a  pursuer,  the  others  are  not  guilty 

1  roster,  Crown  Law,  349,  350 ;  1  Russ.  Bowen,  13  Mass.  359.     And  see,  on  the 

on  Crimes,  pp.  26,  27 ;  1  Hawk.  P.  C.  ch.  subject    of  Accessories,    Wharton's  Am. 

32,  §  7  ;  Burr's  case,  4  Crauch,  492,  493 ;  Crim.  Law,  ch.  3  (2d  ed.). 
1  Hale,   P.   C.   439  ;    Commonwealth  v. 


40  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

of  this  felony.     So,  where  one  did  beat  a  constable,  in  the  execu- 
tion of  his  office,  and  after  he  had  been  parted  from  him  and  had 
entirely  desisted,  a  friend  of  the  party  renewed  the  assault  and 
killed  the  constable,  the  other  party  was  held  innocent  of  the 
killing,  he  having  been  not  at  all  engaged  after  they  were  first 
separated.     But  if,  in  the  former  case,  there  had  been  a  general 
resolution  against  all  opposers  ;  or,  in  the  latter,  a  previous  agree- 
ment to  obstruct  the  constable  in  the  execution  of  his  office,  all 
would  have  been  alike  guilty  as  principals.^     The  principal  in  the 
second  degree  must  be  in  a  situation  in  which  he  might  render  his 
assistance,  in  some  manner,  to  the  commission  of  the  offence  ;  and 
this,  by  agreement  with  the  chief  perpetrator.^    But  the  fact  of 
conspiracy,  is  not  alone  sufficient  to  raise  a  presumption  that  all 
the  conspirators  were  constructively  present  at  the  commission  of 
the  crime  ;  though  it  may  be  considered  by  the  Jury  as  tending  to 
prove  thei*r  presence.^    If,  however,  it  is  proved  that  the  prisoner 
was  one  of  the  conspirators,  and  was  in  a  situation  in  which  he 
might  have  given  aid  to  the  perpetrator  at  the  time  of  the  act 
done,  it  will  be  presumed  that  he  was  there  for  that  purpose,  unless 
he  shows  satisfactorily  that  he  was  there  for  another  purpose,  not 
connected  with  the  crime.^     If  the  conspirators  are  alarmed  and 
flee  in  different  directions,  and  one  of  them  maim  a  pursuer,  to 
avoid  being  taken,  the  others  are  not  to  be  considered  as  principals 
in  that  maiming.^ 

§  41.  The  presence  alone  of  the  party  is  not  sufficient  to  consti- 
tute him  a  principal  in  the  second  degree,  unless  he  was  aiding 
and  abetting  the  perpetrator.  This  implies  assent  to  the  crime  ; 
and  mere  bodily  presence,  without  any  attempt  to  prevent  the 
crime,  though  it  will  not  of  itself  constitute  guilty  participation,  is 
evidence  from  which  a  Jury  may  infer  his  consent  and  concur- 
rence.^   And  though  constructive  presence  consists  in  this,  that  it 

1  Foster,  351,  352,  353  ;  Regina  v.  How-  «  Foster,  350 ;  1  Halo,  P.  C.  438.  [*  "  The 
ell,  9  C.  &  P.  437 ;  U.  States  v.  Ross,  1  true  rule  is  this  :  any  person  who  is  pros- 
Gall.  624.  ent  at  the  commission  of  a  trespass,  en- 

'^  Foster,  350;  1  Hawk.  P.  C.  b.  2,  ch.  eoura^ing  or  exciting  the  same  hy  words, 

29,  §  8  ;  Knapp's  case,  9  Pick.  518.  gestures,  looks,  or  signs,  or  who  in  any 

^  Ibid. ;  Kex  v.  Bostwick,  1  Doug.  207 ;  way  or  by  any  means  countenances  or  ap- 

Hardcn's  case,  2  Dev.  &  Bat.  407.  proves  the  same,  is  in  law  deemed  to  be  an 

*  Knapp's  case,  9  Pick.  529.    The  friends  aider  and  abettor,  and  liable  as  principal; 

of  duellists,  who  go  out  with  them,  are  and  proof  that  a  person  is  present  at  the 

present  when  the  shot  is  fired,  and  return  commission  of  a  trespass  without  disap- 

with  them,  though  not  acting  as  seconds,  ])roving  or  opposing  it,  is  evidence  from 

arc  principals  in  the  second  degree.      Re-  which,  in  connection  with  other  circum- 

gina  V.  Young,  8  C.  &  P.  644.  stances,  it  is  competent  for  the  jury  to  in- 

^  Rex  V.  White,  Russ.  &  Ry.  99.  fcr  that  he  assented  thereto,  lent  to  it  his 


PART  v.]  ACCESSORY.  4l 

encourages  the  principal  actor  with  the  expectation  of  immediate 
aid,  yet  it  is  not  necessary  to  prove  that  the  party  charged  as  prin- 
cipal in  the  second  degree  was  actually  present,  at  the  place  as- 
signed, during  the  whole  transaction  ;  it  being  sufficient  if  he  was 
there  at  tlie  consummation  of  the  offence.^  Thus,  if  one  counsel 
another  to  commit  suicide,  and  is  present  at  the  consummation  of 
the  act,  he  is  principal  in  the  murder  ;  for  it  is  the  presumption  of 
law,  that  advice  has  the  influence  and  effect  intended  by  the  ad- 
viser, unless  it  is  shown  to  have  been  otherwise,  as,  for  example, 
that  it  was  received  with  scoff,  or  manifestly  rejected  and  ridiculed 
at  the  time  it  was  given  .^ 

§  42.  An  accessory  before  the  fact  is  he  who,  being  absent  at  the 
time  of  the  felony  committed,  does  yet  procure,  counsel,  or  com- 
mand another  to  commit  a  felony.^  Words  amounting  to  a  bare 
permission,  will  not  alone  constitute  this  offence.*  Neither  will 
mere  concealment  of  the  design  to  commit  a  felony.^  It  is  not 
necessary  to  this  degree  of  crime,  that  the  connection  between  the 
accessoiy  and  the  actor  be  immediate  ;  for  if  one  procures  another 
to  cause  a  felony  to  be  committed  by  some  third  person,  and  he 
does  so,  the  procurer  is  accessory  before  the  fact,  though  he  never 
saw  or  heard  of  the  individual  finally  employed  to  commit  the 
crime. *^ 

§  43.  There  are  no  accessories  before  the  fact  in  treason 
nor  in  crimes  under  the  degree  of  felony,  all  persons  concerned 
in  them  being  considered   principals,"   nor  in   manslaughter,  be- 

countenance  and  approval,  and  was  thereby  away  and  detains   him   is   constructively 

aiding  and  abettinii-  the  same."     Bigelow,  present  at  the  burglary,  and  may  be  in- 

C.  J.,  Brown  v.  Perkins,  1  Allen  98.]  dieted  as  a  principal  otieuder.] 

1  Rex  V.  Dyer,  2  East.  P.  C.  767  ;  Rex         ^  Commonwealth    v.  Bowen,    13  Mass. 
V.  Atwell,  Id.   768.     If  he  only  assists  in  359;    Rex  v.  Dyson,   Russ.   &  Ey.  523; 
disposing   of  the    subject  of   the  offence,  Eegina  v.  Alison,  8  C.  &  P.  418. 
after  the  crime  is  completed,  as,  in  further         ^  i  Hale,  P.  C.  615.    [See  Reg.  v.  Tuck- 
carrying  away  stolen  goods,  he  is  but  an  well,  C.  &  M.  215.] 

accessory  after  the  fact.      Rex  v.   King,         *  Hawk.  P.  C.  b.  2,  ch.  29,  §  16  ;  Rex  v. 

Russ.  fe'Ry.  332 ;  The  People  v.  Norton,  8  Scares,  Russ.  &  Ry.  75  ;  The  People  v. 

Cowen,  137.  [*In  Breese  v.  State,  12  Ohio  Norton,  8  Cowen,  137. 
St.  146,  it  is  held  that  if  two  or  more  per-  ^  1  Hale,  P.  C.  374. 
sons  confederate  together  to  break  open  a         ^  Foster,  125,  126;  Macdaniel's  case,  19 

store  in  the  night  season   and   steal   the  How.    St.    Tr.    804 ;    Earl   of  Somerset's 

goods  therein,  and  it  is   agreed  between  case,   2    Howell's  St.   Tr.  965  ;    [Rex  w. 

them,  in  order  to  facilitate  the  burglary  Cooper,  5  C.  &  P.  535.] 
and  lessen  the  danger  of  detection,  that         '  [Regina  y.  Greenwood,  16  Jur.  390;  2 

one  of  them  shall,  on  the  night  agreed  on,  Denison,  C.  C.  453  ;  9  Eng.  Law  &  Eq. 

entice  the  owner  to  a  house  a  mile  distant  R.  535  ;  5  Cox,  C.  C.  521  ;  Regina  v.  Mo- 

from  the  store  and  detain  him  there,  while  land,  2  Moody,  C.  C.  276  ;   Ward  v.  The 

the  others  break  into  the  store  and  remove  People,  6   Hill,   144;    State    v.  Goode,   1 

the  goods,  and  the  confederates  perform  Hawks,  463 ;   Williams  v.  The   State,   12 

their   respective  parts  of  the   agreement,  Sm.  &  M.  58  ;  Commonwealth  i?.  McAtee, 

the  person  who  thus   entices   the   owner  8  Dana,  28  ;    Commonwealth  v.  Ray,  3 


42  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

cause  the  offence  is  considered  in  law  sudden  and  unpremedi- 
tated.^ 

§  44.    Where  the  principal  acts  under  instructions  from  the  ac- 
cessory, it  is  not  necessary,  in  order  to  affect  the  latter,  that  the 
instructions  be  proved  to  have  been  literally  or  precisely  followed ; 
it  will  be  sufficient  if  it  be  shown  that  they  have  been  substantially 
complied  with?     Thus,  if  one  instnicts  another  to  commit  a  mur- 
der by  poison,  and  he  effects  it  with  a  sword,  the  former  is  acces- 
sory to  the  murder,  for  that  was  the  principal  thing  to  be  done, 
and  the  substance  of  the  instruction.^     So,  if  the  person  employed 
goes  heyond  Ids  i7istructions,  in  the  circumstances  of  the  transaction, 
as,  if  tlie  design  be  to  rob,  and  in  doing  this  he  kills  the  party, 
whether  upon  resistance  made,  or  for  concealment  of  the  robbery  ; 
or,  if  the  instructions  be  to  burn  the  house  of  A,  and  the  flames 
extend  to  the  house  of  B,  and  burn  that  also  ;  the  person  counsel- 
ling and  directing  is  accessory  to  the  murder,  in  the  former  case, 
and  to  the  burning  of  the  second  house,  in  the  latter  ;  because  the 
second  crime  was  a  probable  consequence  of  the  first,  and  every 
sane  man  is  presumed  to  foresee  and  assume  the  probable  conse- 
quences of  his  own  acts.*     So,  if  the  party  employed  to  commit  a 
felony  on  one  person,  perpetrates  it,  by  mistake,  upon  another,  the 
party  counselling  is  accessory  to  the  crime  actually  committed.^ 
But  if  the  principal  totally  and  substantially  departs  from  his  irv- 
structions,  as  if,  being  solicited  to  burn  a  house,  he  moreover  com- 
mits a  robbery  while  so  doing,  he  stands  single  in  the  latter  crime, 
and  the  other  is  not  held  responsible  for  it  as  accessory .^ 

§  45.  If  the  accessory  repents  and  countermands  the  order  before 
it  is  executed,  and  yet  the  principal  persists  and  commits  the 
crime,  the  party  is  not  chargeable  as  accessory.  But  if,  though 
repenting,  he  did  not  actually  countermand  the  principal  before 
the  fact  was  done,  he  is  guilty.'^ 

Gray  441.     And  7Ha!/-e  whether  the  acces-  *  Foster,  370;  1  Huss.  on  Crimes,  Zb  , 

sories  before  the  fact  to   petty  statutory  ylnte,  Vol.  1,  §  18  ;.?»/)/«,§  13, 14.    Where 

oftences  are  imiiishahle  at  all.     Coininun-  a  servant  wroni^-fiiUy  ])laced   his  master  s 

wealth  V.  Willani,  2-J  I'iek.  47f),  478.]    [*  In  floods  in  a  position  to  enable  the  prisoner, 

California  l>v  statute  no  distiuetion  exists  from  whom  they  had  been  pureha.sed,  to 

between  a  pVineipal  and  an  aecessorv  be-  obtain  ].ayment  for  them  a  second  time,  he 

fore  the  fact.     People  v.  Davidson,  5'Cal.  was  adjuilKcd  an  accessory  before  the  fact. 

133]  Ke-iiia  i\  Miiiiiun;,^  17  Jur.  28  ;   14  Eng. 

I'l  Hale,  P.  C.  613,  615  ;  4  Bl.  Comm.  Law  &  Va\.  K.  r)48  ;  1  Pearee,  C.  C.  21. 

3.5.     [Hut  sec  Ke-ina  v.  Gaylor,  40  Eng.  "  1  Hale,  P.  C.  617 ;  1  Kuss.  on  Crimes, 

Law  &  En.  U.  .-ji^e  -  558.1  36  ;  Foster,  370,  371 ,  372. 

2  Aule,  Vol.  1,  §  65.  «  1  Hale,  P.  C.  616,  617  ;  Foster,  369. 

»  Foster,  36'J,'370.  ''  1  Hale,  P.  C.  618. 


PART  v.]  ACCESSORY.  43 

§  46,  By  the  common  law,  an  accessory  cannot  he  put  upon  his 
separate  trial,  without  his  consent,  until  conviction  of  the  principal  ;'^ 
for  the  legal  guilt  of  the  accessory  depends  on  the  guilt  of  the 
principal ;  and  the  guilt  of  the  principal  can  only  be  established 
in  a  prosecution  against  himself.  But  an  accessory  to  a  felony 
committed  by  several,  some  of  whom  have  been  convicted,  may  be 
tried  as  accessory  to  a  felony  committed  by  these  last  ;  but  if  he  is 
indicted  and  tried  as  accessory  to  a  felony  committed  by  them  all, 
and  some  of  them  have  not  been  proceeded  against,  it  is  error.^ 
If  the  principal  be  dead,  the  accessory  cannot,  by  the  common  law, 
be  tried  at  all.^  The  conviction  of  the  principal  is  sufficient, 
without  any  judgment,  as  primd  facie  evidence  of  his  guilt,  to 
warrant  the  trial  of  the  accessory  ;  but  the  latter  may  rebut  it  by 
showing,  clearly,  that  the  principal  ought  not  to  have  been  con- 
victed.^ And  it  seems  that  in  every  case  of  the  trial  of  an  acces- 
sory, he  may  controvert  the  guilt  of  the  principal.^  He  may  also 
require  the  production  of  the  record  of  his  conviction,  notwith- 
standing he  has  himself  pleaded  to  the  indictment ;  for  the  waiver 
of  a  right,  in  criminal  cases,  is  not  to  be  presumed.*^  If  the  princi- 
pal is  indicted  for  murder,  and  another  is  indicted  as  accessory  to 
that  crime  after  the  fact,  and  upon  trial  the  offence  of  the  prin- 
cipal is  reduced  to  manslaughter,  the  other  may  still  be  found 
guilty  of  being  accessory  to  the  latter  crime. '^ 

§  47.  Accessories  after  the  fact,  by  the  common  law,  are  those 
who,  knowing  a  felony  to  have  been  committed  by  another,  receive, 

1  1  Hale,  P.  C.  62.3;  Phillips's  case,  16  the  time  without  the  State,  and  perpetrat- 

Mass.  423  ;  2  Burr's  Trial,  440  ;  4  Crunch,  ing  the  crime  by  means  of  an  innocent 

App.  502,  503 ;   Barron  v.  Tlie  People,  1  agent,  he  can  be  tried  in  New  York  when- 

Parker,  C.  R.  246.    By  stats.  7  Geo.  4,  ch.  ever  he  is  brought  into   Court;   and  the 

64,  §  9,  the  accessory  before   the  fact  is  fact  that  he  owed   allegiance  to   another 

deemed  guilty  of  a  substantive  felony,  for  State  is  not  material  unless  the  crime  al- 

which  he  may  be  indicted  and  tried,  whether  leged  be  treason.] 

the  principal"  has  or  has  not  been  previous-  ^  Stoops's  case,  7  S.  &  E.  491. 

ly  convicted.     Similar  statutes  have  been  ^  phinjps's  case,  16  Mass.  423.     On  a 

passed  in   several   of  the  United   States,  similar  question,  Hullock,  B.,  doubted,  but 

[*  An  accessory  may  be  indicted,  but  can-  would  not  stop   the  case  ;   but  the  party 

not  be  tried  before  conviction  or  outlawry  being  acquitted,  the  point  was  no  further 

of   the  principal.      Holmes  v.  The  Com-  considered.     Quinn's  case,  1  Lewin,  C.  C. 

monwealth,  25  Penn.  St.  221.     In  State  y.  1.     See  The  State  v.  Ricker,  29  Maine, 

Chapin,   17  Ark.  561,  it  is  held   that  an  84. 

accessory  before  the  fact  in  one  State  to  a  *  Knapp's  case,  10  Pick.  484  ;  "William- 
felony  committed  in  another  State  is  guilty  son's  case,  2  Virg.  Cas.  211  ;  Foster,  364- 
of  a  crime  in  the  State  where  he  became  368;  Cook  v.  Field,  3  Esp.  134. 
accessory,  and  punishable  there,  the  prin-  &  Foster,  367,  368;  Macdaniel's  case,  19 
cipal  being  indictable  in  the  State  where  Howell,  St  Tr.  808 ;  1  Russ.  on  Crimes, 
the  felony  was  committed.     In  Adams  v.  39,  40. 

The  People,  1  Comstock,  173,  it  is  held  «  Andrews's    case,   3   Mass.    132,   133. 

that,  where  an  oiience  is  committed  in  the  And  see  Briggs's  case,  5  Pick.  429. 

State  of  New  York,  the  offender  being  at  '  Greeuacre's  case,  8  C.  &  P.  35. 


44  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

relieve,  comfort,  or  assist  the  felon}  If  one  opposes  the  apprehen- 
sion of  a  felon,  or  voluntarily  and  intentionally  suffers  him  to  es- 
cape, or  rescues  him,  he  becomes  an  accessory  after  the  fact.^  So, 
if  he  receives  or  aids  an  accessory  before  the  fact,  it  is  the  same  as 
if  he  received  or  aided  the  principal  felon  .^  But  the  felony  must 
have  been  completed  at  the  time,  or  the  party  is  not  an  accessory 
after  the  fact.  Thus,  if  the  aid  is  given  after  the  infliction  of  a 
mortal  stroke,  but  before  death  ensues,  he  is  not  accessory  to 
the  death.*  There  must  be  evidence  that  the  party  charged  did 
some  act,  personally,  to  assist  the  felon  ;  *  but  it  is  sufficient,  if 
it  appear  that  he  did  so  by  employing  another  person  to  assist 
him.*^ 

§  48.  A  feme  covert  cannot  be  an  accessory  after  the  fact  for 
receiving  her  husband  ;  for  it  was  her  duty  not  to  discover  him.'^ 
But  it  is  generally  said  that  the  husband  may  be  an  accessory 
after  the  fact  by  the  receipt  of  his  wife.^  And  though  this  has 
been  questioned,  because  the  obligations  of  husband  and  wife  are 
reciprocal,  the  husband  owing  protection  to  the  wife  ;  ^  yet  it  seems 
that  it  is  still  to  be  received  as  the  rule  of  law.  If  the  wife  receive 
stolen  goods,  or  receive  a  felon,  of  her  own  separate  act,  and  with- 
out the  knowledge  of  the  husband  ;  or  if  he,  knowing  thereof, 
abandon  the  house,  refusing  to  participate  in  the  offence,  she 
alone  is  guilty  as  an  accessory.^^  And  if  she  be  guilty  of  pro- 
curing the  husband  to  commit  a  felony,  this,  it  seems,  will  make 
her  an  accessory  before  the  fact,  in  the  same  manner  as  if  slie 
were  sole.^^  So,  also,  the  wife  may  sometimes  commit  the  principal 
felony,  and  the  husband  be  accessory  before  the  fact ;  as,  if  she 
utter  forged  documents,  in  his  absence,  but  by  his  direction.^^ 

§  49.    In  the  indictment  of  an  accessory  before  the  fact,  it  docs  not 

1  1  Hale,  p.  C.  618,  622;  4  Bl.  Coram,  receive  stolen  goods,  knowing  them  to  be 

.37.     So  if  he  employs  another  to  receive  stolen,  does  not,  at  common  law,  make  the 

and   assist   the   jjrincipal   felon.     Rex  v.  party  accessory  to   the  theft,  because  he 

Jarvis,  2  M.  &  Rob.  40.  receives  the  goods  only,  and  not  the  felon  ; 

•^  I  Hale,  P.  C.  619  ;  2  Hawk.  P.  C.  ch.  but  he  is  guilty  of  a  misdemeanor.     4  Bl. 

29,  §  27  ;   Kex  v.  Grecnacre,  8  C.  &  P.  3.5.  Comm.  .38. 

»  2  Hawk.  P.  C.  ch.  29,  §  I  ;  I  Hale,  P.  "  I   Hale,  P.  C.  621  ;  4  Bl.  Comm.  38. 

C.  622.  [But  she  may  be  an  accessory  l)ef<)re  the 

'  1  Hale,  P.  C.  622;  2  Hawk.  P.  C.  ch.  fact  in  her  husband's  crime."   Regina  v, 

29,  §  35  ;  4  lib  Comm.  38.  Manning,  2  C.  &  K.  90.3.] 

°  Regina  v.  Chappie,  9  C.  &  P.  355.  »  ll)i(i. ;  2  Hawk.  P.  C.  ch.  29,  §  .34. 

6  Rex  J,'.  Jarvis,  2  M.  &  Rob.  40.     The  ^  1  Deacon,  Crim.  Law,  15. 

reason  on  which  the  common  law  makes  ^'^  1  Russ.  on  Crimes,  21 ;  I  Hale,  P.  C. 

the  party  in  these  cases  criminal  is,  that  621. 

the  course  of  puiilic  justice  is  hindered,  and  "  2  Hawk,  P.  C.  ch.  29,  §  34.     See  also 

justice   itself  evaded,    by  facilitating   the  1  Hale,  P.  C.  516. 

escape  of  the  felon.     Therefore,  to  buy  or  i-  Rex  r.  Jlorris,  Russ.  &  Ry.  270. 


PART  v.] 


ACCESSORY. 


45 


seem  necessary  to  state  the  manner  of  committing  the  offence  ;  it 
is  sufficient  to  charge  generally,  that  he  "  feloniously  abetted,  in- 
cited, and  procured"  the  principal  to  commit  it.^  In  the  case  of 
an  aeeessory  after  the  fact,  it  is  sufficient,  after  stating  the  principal 
offence,  to  charge  that  he  did  afterwards  "  feloniously  receive, 
comfort,  harbor,  and  maintain  "  the  principal  offender.^  And  in 
either  case,  if  he  is  indicted  as  accessory  to  two  or  more,  and  is 
found  guilty  of  being  accessory  to  one  only,  the  conviction  is  good.^ 


1  2  Hawk.  P.  C.  ch.  29,  §  17.     "  To 

cause,"  says  Lord  Coke,  '•  is  to  procure  or 
counsel : To  assent,  is  to  give  his  as- 
sent or  agreement  afterwards  to  the  pro- 
curement or  counsel  of  another  : To 

consent  is  to  agree  at  the  time  of  the  pro- 
curement or  counsel ;  and  he  in  law  is  a 
procurer."     3  Inst   169. 

^  1  Deacon,  Crim.  Law,  17;  2  Chitty, 
Crim.  Law,  5  ;  Archb.  Crim.  PL  820.  Li 
the  indictment  of  an  accessory,  whether 
before  or  after  the  fact,  the  charge  against 
the  principal  felon  is  first  stated,  with  all 
the  formality  necessary  in  charging  him 
alone ;  after  which,  the  offence  of  the  ac- 
cessor}' is  alleged.  The  body  of  the  in- 
dictment at  common  law  is  usually  after 
the  following  manner :  — 

1 .  Against  an  Accpssonj  to  a  Larceny,  before 
the  Fact. 

The  Jurors  for  the  (State  or  Common- 
wealth) of  M.,  upon  their  oath  present, 

that  (naming  the  principal  felon) ,  of , 

in  the  county  of ,  (addition)  on  the 

day  of ,  in  the  year  of  our 

Lord  - 


,  at ,  in  said  county  of 

,  one  silver  cup,  of  the  value  of 

dollars,  of  the  goods  and  chattels 

of  one  (naming  the  owner)  then  and  there 
in  the  possession  of  the  said  (oiaier)  being 
foimd,  feloniously  did  steal,  take,  and  car- 
ry away,  against  the  peace  of  the  (State  or 
Commonwealth)  aforesaid.  And  the  Jurors 
aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  (naming  the  accessor!/)  of 

,  in  the  county  of ,  (addition) _ 

before  the  committing  of  the  larceny  afore- 
said, to  wit,  on  the day  of , 

in  the  year ,  at ,  in  the  county 

aforesaid,  did  knowingly  and  feloniously 
incite,  move,  procure,  aid,  abet,  counsel, 
hire,  and  command  the  said  (principal fil on) 
to  do  and  commit  the  said  felony  and  lar- 
ceny, in  manner  and  form  aforesaid,  against 
the  peace  of  the  (State  or  Commonwealth) 
aforesaid. 

The  words  "  and  against  the  form  of  the 
statute  (or  statutes),  in  that  case  made  and 
provided,"  are  necessary  to  be  added  only 
when  the  indictment  is  founded  upon  a 


statute  ;  otherwise,  they  are  mere  surplus- 
age, in  the  case  of  otfences  at  common 
law.  2  Hale,  P.  C.  190;  1  Chitty,  Crim. 
Law,  p.  289  (Perkins's  ed.) ;  Common- 
wealth V.  Shattuck,  4  Cush.  141  -  143  ; 
Commonwealth  v.  Hoxey,  16  Mass.  385. 

2.  Against  an  Accessori/  to  any  Felony,  after 

the  Fact. 

[The  indictment  is  first  fi-amed  in  the 
usual  form  against  the  principal  felon, 
after  which  it  proceeds  to  charge  the  acces- 
sory as  follows  :  — ] 

And  the  Jurors  aforesaid,  upon  their 
oath   aforesaid,   do   further  present,   that 

(naming   the  accessori/),  of  ,  in  the 

county  of ,  (addition)  well  knowing 

the  said  (principal  felon) ,  to  have  done  and 
committed  the  felony  and  (murder  or  rob- 
bery, &c.,  as  the  case  may  he)  aforesaid,  in 
manner  and  form  aforesaid,  afterwards,  to 

wit,  on  the  day  of ,  in  the 

year  ,   at  ,   in   the    county 

aforesaid,  him  the  said  (principal  ftlun)  did 
then  and  there  knowingly  and  feloniously 
receive,  harbor,  conceal,  and  maintain,  in 
the  felony  and  (murder,  &c.)  aforesaid, 
against  the  peace  of  the  (State  or  Com- 
monwealth) aforesaid. 

3.  Against  joint  Accessories  to  a  Murder,  be- 

fore the  fold. 

[After  alleging  the  murder,  in  the  usual 
form,  against  the  principal,  the  indictment 
proceeds  thus  :  — ] 

And  the  Jurors  (&c.)  do  further  present, 

that  J.   K.,   of  ,  &c.,  and  G.  C, 

of ,  &c.,  before  the  said  felony  and 

murder  was   committed,  in   manner  and 

form  aforesaid,  to  wit,  on ,  at , 

were  accessory  thereto  before  the  fact,  and 
then  and  there  feloniously,  wilfully,  and 
of  their  malice  aforethought,  did  counsel, 
hire,  and  procure  the  said  (naming  the  prin- 
cipal felon)  the  felony  and  murder  afore- 
said, in  manner  and  form  aforesaid,  to  do 
and  commit,  against  the  peace  of  the 
(State  or  Commonwealth)  aforesaid.  See 
Commonwealth  v.  Knapp,  9  Pick.  496  ;  1  ) 
Pick.  477. 

^  Lord  Sanchar's  case,  9  Co.  1  i  9  ;  1 
Hale,  P.  C.  624. 


46  LAW   OF   EVIDENCE   IN   CRIMINx'lL   CASES.  [PART  V. 

If,  being  indicted  as  accessory  lefore  the  fact,  the  proof  is  that  he 
was  present,  aiding  and  abetting,  he  cannot  be  convicted  of  the 
charge  in  the  indictment ;  for  the  proof  is  of  a  different  crime, 
namely,  of  the  present  felony .^  But  if  two  are  indicted  together, 
one  being  charged  with  larceny,  and  the  other  with  the  substantive 
felony  of  receiving  the  same  goods,  the  latter  may  be  convicted, 
though  the  former  is  acquitted.^  And  if  two  are  indicted  together, 
the  one  of  murder  and  the  other  as  accessory  after  the  fact,  and 
the  former  be  convicted  of  manslaughter  only,  the  latter  may  also 
be  convicted  as  accessory  to  the  latter  offence.^ 

§  60.  In  proof  of  the  offence  of  being  accessory  before  the  fact,  it  is 
necessary  to  show  that  the  prisoner  instigated  and  incited  the  prin- 
cipal to  commit  the  crime.  With  respect  to  the  degree  of  incite- 
ment, and  tlie  force  of  the  persuasion  used,  no  rule  seems  to  have 
been  laid  down.  If  it  was  of  a  nature  tending  to  induce  the  com- 
mission of  the  crime,  and  was  so  intended,  it  will  be  presumed  to 
have  led  to  that  result,  if  the  crime  is  proved.  It  does  not  seem 
necessary  to  prove,  substantially,  that  the  persuasion  employed 
actually  produced  any  effect,  in  order  to  maintain  the  indictment ; 
nor  is  it  a  good  defence  that  the  crime  would  have  been  commit- 
ted had  no  persuasion  or  incitement  been  employed.*  The  cases 
where  one  crime  was  advised,  and  another  was  perpetrated  upon 
that  advice,  are  all  governed  by  one  and  the  same  principle.  If 
the  crime,  committed  liy  the  principal  felon,  was  committed  under 
the  influence  of  the  flagitious  advice  of  the  other  party,  and  the 
event,  though  possibly  falling  out  beyond  the  original  intention  of 
the  latter,  was,  nevertheless,  in  the  ordinary  course  of  things  a 
probable  consequence  of  that  felony,  he  is  guilty  of  being  accessory 
to  the  crime  actually  committed.  But  if  the  principal,  following 
the  suggestions  of  his  own  heart,  wilfully  and  knowingly  com- 
mitted a  felony  of  another  kind,  on  a  different  siibject,  he  alone  is 
guilty  .5 

1  Rex  V.  Winfrcd  Gordon  et  al.,  2  Leach,     by  statute,  the  offence  of  receiving  is  made 
C.  C.  (4th  rd.)  r)15  ;   1   Eiiat,  P.  C.  352  ;  1      a  substantive  Mony. 

Russ.  on  Crimes,  .30,  31  ;    Retina  v.  Per-  "  Per  Tindal,  C.  J.,  in  Rex  v.  Green- 
kins,  12  En<;.  Law  &  Eq.  R.  587  ;   5  Cox,  acre,  8  C.  &  P.  35. 
C.  C.  554  ;  2  Denison,  C.  C.  459.  *  2  Stark.  Ev.  8.     And  sec  Common- 

2  Rcfiina  v.   Puiham,  9   C.  &   P.  280.  wealth  r.  Boweu,  13  Mass.  359. 

This,  iris  supposed,  can  arise  only  where,         ^  Foster,  370,  371,  372  ;  Supra,  §  44. 


PART  v.] 


ARSON. 


47 


ARSON. 


[*  §  51.  What  must  be  charged  in  the  indictment. 

52.  What  is  compi-ehendcd  in  term  "  dwelling-house." 

53.  Burning  one's  own  house,  when  a  crime. 

.54.  Ownership  of  house,  how  to  be  charged  and  proved. 

55.  Actual  burning  must  be  proved. 

56.  Also  felonious  intent. 

57.  Ownership  must  be  proved  as  alleged.] 

§  51.  The  indictment,  at  common  law,  for  this  crime,  charges 
that  the  prisoner,  "  with  force  and  arms,  on,  &c.,  at,  &c.,  felo- 
niously, wilfully,  and  maliciously  did  set  fire  to  and  burn  a  certain 
dwelling-house  1  of  one  J.  S.,  there  situate,"  ko,?  To  support  the 
indictment,  therefore,  four  things  must  be  proved  ;  namely,  first, 
that  the  offence  was  committed  upon  a  dwelling-house  ;  ^  secondly, 
that  it  was  the  house  of  the  person  named  as  the  owner  ;  *  thirdly, 
that  it  was  burnt ;  and,  fourthly,  that  this  was  done  with  a  felo- 
nious intent. 

Wade,  17  Pick.  395;  [Commonwealth  v. 
Barney,  10  Cush.  478  ;  Hooker  v.  State, 
13  Gratt.  763.]  The  charge  for  this  of- 
fence, at  common  law,  is  the  following 
form  :  — 

The  Jurors,  &c.,  on  their  oath  present, 
that  A.  B.,  of,  &c.,  on,  &c.,  at,  &c.,  the 
dweHing-house  of  one  C.  D.,  there  situate, 
feloniously,  wilfully,  and  maliciously  did 
set  fire  to,  and  the  same  house  then  and 
there,  by  such  firing  as  aforesaid,  felonious- 
ly, wilfully,  and  maliciously  did  burn  and 
consume,  against  the  peace  of  the  (State 
or  Commonwealth)  aforesaid. 

The  words  wilfully  (or  foluntarily)  and 
maliciously,  as  well  as  feloniously,  are  in- 
dispensable in  charging  this  crime.  2 
East,  P.  C.  1033;  1  Gabbett,  Crim. 
Law,  78  ;  1  Hawk.  P.  C.  ch.  39,  §  5  ; 
Rex  V.  Reader,  4  C.  &  P.  245.  But 
it  seems  that  the  allegation  that  the 
act  was  done  "  wilfully  "  is  unnecessary, 
as  the  term  "  maliciously  "  sufficiently  im- 
ports that  the  offence  was  conmiitted  wil- 
fully. Chapman  v.  The  Commonwealth, 
5  Wharton,  427.  See  Train  and  Heard's 
Precedents  of  Indictments,  29. 


1  It  is  not  necessary  to  allege  it  to  be  a 
dwellivq  house  ;  the  word  "  house  "  alone 
is  sufficient,  3  Inst.  67  ;  1  Hale,  P.  C. 
567  ;  Commonwealth  v.  Posey,  4  Call, 
109  ;  Rcyina  v.  Connor,  2  Cox,  C.  C.  65  ; 
2  East,  P.  C.  1033.  See  The  State  v.  Sut- 
clift'e,  4  Strobh.  372. 

^  The  omission  of  the  words  "  there 
situate "  is  not  fatal  to  the  indictment. 
Where  the  place  is  material,  the  place  al- 
leged in  the  venue,  taken  in  connection, 
that  the  defendant  then  and  there  did  the 
act,  sufficiently  designate  the  locality  of  the 
building  set  on  fire.  The  principle  is,  that 
if  it  is  not  expressly  stated  where  the 
building  is  situated,  it  shall  be  taken  to  be 
situated  at  the  place  named  in  the  indict- 
ment by  way  of  venue.  Commonwealth  v. 
Lamb,  1  Gray,  493  ;  Rex  v.  Napper,  1 
Moody,  C.  C.  46  ;  [Commonwealth  v.  Bar- 
ney, 10  Cush.  480.] 

^  The  burning  of  other  property,  of  va- 
rious descriptions,  is  made  punishable  by 
statutes  of  the  different  American  States, 
the  consideration  of  which  does  not  fall 
within  the  plan  of  this  treatise. 

*  See  supra,  §  10 ;    Commonwealth  v. 


48  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES.  [PAET  V. 

§  52.  The  term  dwelling-house^  in  the  common  law,  compre- 
hends not  only  the  very  mansion-house,  but  all  out-houses  which 
are  parcel  thereof,  though  not  contiguous  to  it,  nor  under  the  same 
roof,  such  as  the  barn,  stable,  cow-house,  sheep-house,  dairy-house, 
mill-house,  and  the  like  ;  ^  so  that  if  the  evidence  be  of  the  burning 
of  one  of, these,  the  averment  is  proved.  But  if  the  barn  be  no 
part  of  the  mansion-house,  the  burning  is  said  not  to  be  felony, 
imless  it  have  corn  or  hay  in  it.^  If  the  out-house  be  within  the 
same  curtilage  or  common  fence,  it  is  taken  to  be  parcel  of  the 
mansion-house  ;  but  no  distant  barn  or  other  building  is  under  the 
same  privilege  ;  nor  is  any  out-house,  however  near,  and  though  it 
be  occupied  by  the  owner  of  the  mansion-house,  if  it  be  not  parcel 
of  the  messuage,  and  so  found  to  be.^  No  common  enclosure  is 
necessary,  if  the  building  be  adjoining  the  mansion-house,  and  oc- 
cupied as  parcel  thereof.'^ 

§  53.  The  burning  of  one's  oivn  Jwuse,  the  owner  being  also  the 
occupant,  does  not  amount  to  this  crime  ;  ^  though  it  is  a  great 
misdemeanor,  if  it  be  so  near  other  houses  as  to  create  danger  to 
them.*^  But  if  the  house  be  insured,  and  the  owner  purposely  set 
it  on  fire  with  intent  to  defraud  the  underwriters,  and  thereby  the 
adjoining  house  of  another  person  be  burnt,  the  burning  of  this 
latter  house  will  be  deemed  felonious." 

1  3  Inst.  67 ;    1  Hale,  P.  C.  567  ;    BI.  Briavells,  8  B.  &  Cress.  461,  it  was  held 

Comm.  221  ;  2  East,  P.  C,  1020;   2  Kuss.  that  a  building  intended  for  a  dwelling- 

on    Crimes,  .548.     In  Massachusetts,   the  house,    but  being   unfinished   and    never 

Stat.  1804,  ch.  31,  §  1,  refers  to  the  dwell-  having  been  occupied,  was  not  a  house  in 

ing-house    strictly.        Commonwealth    r.  res])eet  of  which  burglary  or  arson  could 

Buzzcll,    16   Pick.    161.      [See    Common-  be  committed.     But  the  law  is  otherwise 

wealth  V.  Barney,  10  Cush.  480;    Gage  v.  with  regard  to  a  dwelling-house  once  in- 

Shelton,  3  Kich.  242.]  habited  as  such,  and  from  which  the  occu- 

-  Ibid.  ;   4  Com.  Dig.  471,  tit.  Justices,  pant  is  but  temporarily  absent.  The  State 

P.  1 ;    Sampson  p.  The  Commonwealth,  5  v.  McGowan,  20   Conn.   245.      See   also 

Watts   &   Serg.   385 ;    1    Gabbett,  Crim.  Commonwealth  v.  Squire,  1  Met.  260.] 

Law,  75.  ^  Sec  Erskine  v.  The  Commonwealth,  8 

■^  Ibid.  2  East,  P.  C.  493,   1020 ;    The  Gratt.    624.     [It   seems   that  a  wife  who 

State   V.    Stewart,   6    Conn.   47  ;    Rex  v.  burns  her  husband's  house  is  not  guilty  of 

llaughton,  5  C.  &  P.  555.  arson.      Kex   v.   March,    1    Moody,    182. 

*  2  East,  P.  C.  493,  494  ;    The  State  v.  Under  the  New  York  statute,  describing 

Shaw,  31  Maine,  523.     A  common  jail  is  arson  in  the  lirst  degree  as  "  wilfully  set- 

a  dwelling-house,  if  the  kecper'.s  house  ad-  ting  fire  to  or  burning  in  the  night-time  a 

join  it,  and  tlie  entrance  to  the  prison  is  dwelling,"   &e.,  it  is  held,    tlrat  one  who 

through  the  house  of  the  kee]icr ;    and  it  sets  fire  to  his  own  house  may  be  indicted 

may  be  averred    to  be  the  house  of  the  for  that  crime.     Shepherd  v.  The  People, 

county  or  corporation  to  which  it  belongs.  19  N.  Y.  Rep.  537.] 

Donnevan's  case,  2  W.  Bl."  682  ;   2  East,  «  1  Hale,  P.  C.  567,  568  ;  4  BI.  Comm. 

P.  C.  1020  ;    1  Leach,  C.  C.  (4th  cd.)  69  ;  221  ;  2  East,  P.  C.  1027,  1030;  1  Deacon, 

The  Pcoj)le  v.   Cottcral,   18  Johns.  115;  Crim.  Law,  56;   Bloss  r.  Tobey,  2  Pick. 

Regina  v.  Conner,  2  Cox,  C  C.  65.     See  325. 

Stevens  v.  The  Ccnnmonwcalth,  4  Leigh,  '  Probert's  case,  2  East,   P.    C.   1030, 

683.   [*  In  Elsmore  v.  The  Hundred  of  St.  1031. 


PART  V]  ARSON.  49 

§  54.  As  to  the  oivnersMp  of  the  house,  it  must  be  laid  and 
proved  to  be  tlie  house  of  some  other  person  than  the  prisoner 
himself ;  but  it  is  not  necessary  that  the  reversionary  interest  be 
in  the  occupant ;  it  is  the  right  of  present  possession,  mo  jure,  at 
the  time  of  the  offence,  which  constitutes  the  ownership  required 
by  the  common  law.^  Therefore,  this  crime  may  be  committed  by 
one  entitled  to  dower  in  the  house,  which  has  not  been  assigned  ;2 
or,  by  the  reversioner,  who  maliciously  burns  the  house  in  the  pos- 
session of  his  tenant.-^  On  the  other  hand,  if  the  lessee  or  the 
mortgagor  burns  the  house  in  his  own  possession,  it  is  not  arson.* 
But  where  a  parish  pauper  maliciously  burned  the  house  in  which 
he  had  been  placed  rent-free  by  the  overseers  of  the  poor,  who  were 
the  lessees,  he  was  adjudged  guilty  of  arson  ;  for  he  had  no  interest 
in  the  house,  but  was  merely  a  servant,  by  whom  the  overseers  had 
the  possession.^ 

§  55,  There  must  also  be  proof  of  an  actual  burning  of  the 
house.  It  is  not  necessary  that  the  entire  building  be  destroyed  ; 
it  is  sufficient  that  fire  be  set  to  it,  and  that  some  part  of  it,  how- 
ever small,  be  decomposed  by  the  fire,  though  the  fire  be  extin- 
guished or  go  out  of  itself.^  But  an  attempt  to  set  fire  to  the 
house,  by  putting  fire  into  it,  if  it  do  not  take,  and  no  part  of  the 

1  2  East,  P.  C.  1022,  1025  ;  2  Russ.  on  *  Rex  v.  Holmes,  Cro.  Car.  376  ;  W. 
Crimes,  564,  565  ;  The  People  v.  Van  Jones,  351  ;  Rex  v.  Pedley,  1  Leach,  C.  L. 
Blarcnm,  2  Johns.  105.  [In  New  York  it  (4th  ed.)  242;  Rex  v.  Scholfield,  Cald. 
is  arson  m  the  third  degree  for  the  owner  397  ;  2  East,  P.  C.  1023,  1025-1028  ;  2 
of  a  house  which  is  insured  to  set  it  on  fire  Russ.  on  Crimes,  550,  551.  [*It  seems  that 
with  the  intent  to  prejudice  the  insurers,  even  at  common  law,  as  well  as  under  the 
but  the  indictment  must  allege  that  the  Ohio  statutes,  the  tenant  may  be  accessory 
house  is  insured,  and  that  it  was  set  on  fire  before  the  fact  to  arson  of  the  building  he 
to  injui-e  the  insurers.  People  v.  Render-  occupies.  Allen  n.  State,  10  Ohio  St.  (N. 
son,  'i  Parker,  C.  R.  56.]     [*  Arson  is  a  S.)  287.] 

crime  against  the  security  of  a  dwelling-  °  Rex  v.  Gowen,  2  East,  P.  C.  1027 ; 
house  as  such,  and  not  against  the  build-  Rex  v.  Rickman,  Id.  1034. 
ing  as  property  ;  and  it  is  therefore  proper,  ^  "Whether  a  building  has  been  so 
in  an  indictment  for  the  crime,  to  describe  affected  by  fire  as  to  constitute  a  burning 
the  house  burned  as  the  house  of  the  per-  within  the  legal  meaning  of  the  term,  is  a 
son  dwelling  in  it,  without  reference  to  the  question  of  fact  to  be  determined  by  the 
question  of  ownership.  Where  there  is  no  Jury  upon  the  evidence.  Commonwealth 
interior  communication  between  different  v.  Bctton,  5  Cush.  427.  [*  In  an  indict- 
parts  of  the  same  building,  or  if  there  is,  ment  upon  the  statute  providing  for  the 
it  is  not  in  actual  use,  and  the  occupancy  punishment  of  any  person  who  shall  burn 
of  the  parts  is  strictly  in  severalty,  the  any  building,  it  is  sufficient  to  allege  that 
parts  would  be  regarded  as  separate  build-  he  "  set  fire  to  "  such  building,  —  the 
ings.  State  v.  Toole,  29  Conn.  342.  terms  being  equivalent.  State  v.  Taylor, 
In  Maine,  proof  of  actual  occupation  45  Maine,  322.  In  Vermont,  it  is  sufficient 
and  possession  is  sufficient  e\idence  of  the  if  fire  be  applied  to,  or  in  immediate  con- 
allegation  of  ownership.  State  v.  Taylor,  tact  with,  the  building,  with  the  intent  to 
45  Maine,  322.]  bum  it,  though  such  intent  be  not  carried 

2  Hex  (•  Harris,  Foster,  113-115.  out.     State  u.  Dennin,  32  Vt.  158.] 

3  Ibid.  ;  2  East,  P.  C.  1024,  1025. 
VOL.   111.  4 


50  LAW   OF  EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

house  be  burnt,  though  the  combustibles  themselves  are  consumed, 
is  not  arson,  at  the  common  law.^ 

§  56.  There  must  also  be  proof  of  a  felonious  intent.  This  alle- 
gation is  not  supported  by  any  evidence  of  mere  negligence  or 
mischance  ;  ^  nor  by  proof  of  an  intent  to  do  some  other  unlawful 
act,  without  malice,  such  as  if  one,  in  shooting  with  a  gun,  in  vio- 
lation of  the  game  laws,  or  in  shooting  at  the  poultry  of  another, 
should  happen  to  set  fire  to  the  thatch  of  the  house,^  or  the  like. 
But  if  he  intended  to  steal  the  poultry,  the  intent  being  felonious, 
'  he  is  liable  criminally  for  all  the  consequences.*  It  is  not  neces- 
sary, however,  that  the  burning  should  correspond  with  the  precise 
intent  of  the  party  ;  for  if  intending  to  burn  the  house  of  A.,  the 
fire  should,  even  against  his  will,  burn  the  house  of  B.,  and  not 
that  of  A.,  it  is  felony .^  It  is  a  general  rule  of  penal  law,  that 
where  a  felonious  design  against  one  man  misses  its  aim,  and 
takes  effect  upon  another,  it  shall  have  the  like  construction  as  if 
it  had  been  directed  against  him  who  suffers  by  it.^  Therefore  it 
has  been  said,  that  if  one  command  another  to  burn  the  house  of 
A.,  and  by  mistake  or  accident  the  servant  burns  the  house  of  B., 
the  principal  is  guilty  of  felony  for  this  latter  burning.'^  And  if 
one,  by  wilfully  setting  fire  to  his  own  house,  burn  the  house  of  his 
neighbor,  which  was  so  near  that  the  burning  of  it  would  be  the 
natural  and  probable  consequence  of  burning  his  own  house,  it  is 
felony.^ 

§  57.   The  evidence  of  ownership  must  correspond  with  the  alle- 

1  3  Inst.  66  ;  4  BL  Comm.  222  ;  1  Halo,  "  scorched  black  but  not  burnt,"  and  no 

P.  C.  568  ;    1    Gabbett,  Criin.  Law,  7.5  ;  2  p.nrt  of  the  wood  was  consumed,  that  was 

East   P.  0.1020;  Rex  y.  Tavlor,  1  Leach,  held  not  sufficient.     Regina  v.  Russell,  C. 

C.  C.  (4th  ed.)  58  ;  Commonwealth  v.  Van  &  M.  541.     And  sec  The  State  v.  Sandy, 

Schaack,   16  Mass.   105;    The  Teoplc   v.  3  Ired.  570.     Where  fire  was  placed  in  a 

Butler,  16  Johns.  203;   1  Hawk.  P.  C.  ch.  roof  composed  of  wood  and  straw,  pro- 

39,  §  17.     Where  the  witness  testified  that  diicins  smoke  and  burnt  ashes  in  the  straw, 

"the    floor    near    the    hearth    had    been  this  was  held  a  settinj;- on  fire,  though  there 

scorched  ;  it  was  charred  in  a  trifling  way  ;  was  no  appearance  of  fire  itself.     Rex  w. 

it  had  been  at   a  red   heat,  but  not  in  a  Stallion,  1  Moody,  C.  C.  398. 

blaze  "  ;   this  was  thought,  by  Parke,  B.,  '-^  3  lust.  67  ;  4  Bl.  Comm.  222.     [But 

to  be  sufficient  proof  of  arson.     But  the  see  Rex  v.  Cooper,  5  C.  &  P.  535.] 

witness,  on   further  examination,  haviiig  "  1  Hale,  P.  C.  569.    And  see  The  Stata 

stated  that  he  had  not  examined  the  floor,  v.  Mitchell,  5  Ired.  350. 

to  a.scertain  how  deep  the  charring  went  «  2    Enst,    P.    0.    1019;     2    Russ.    on 

in,  neither  could  he  at  all  form  a  judgment  Crimes,  .549. 

as  to  how  long  it  had  been  done,  the  Court  "  &  Ibid.  ;   1  Hawk.  P.  C.  ch.  39,  §  19. 

(per   Bosanquet,  J.)    told    the   Jury  that  ^  See  Supra,  §  17,  18. 

this  evidence  was   much    too   slight,   and  ^  Lamb.  Eirenar.  b.  2,ch.  7,  fol.  282; 

that    they   ought    to   acquit.     Kcgina   v.  Plowd.  475  ;  2  East,  P.  C.  1019. 

Parker,  9  C.  &  P.  45.     But  where  a  small  »  2  East,  P.    C.    lO.TI  ;     Hex    v.   Isaac, 

fagot  having  been  set  on  lire  on  the  board-  Ibid.  ;   Kex  /'.  I'robeit,  id.  lOoO,  per  Grosc, 

ed'floor  of  a  room,  the  boards  were  thereby  J. ;  Supra,  §  44. 


PART  v.] 


AESON. 


51 


gation  in  the  indictment,  or  it  will  be  fatal.^  If  the  indictment 
charges  the  burning  of  an  out-house,  it  is  proved  by  evidence  of  the 
burning  of  such  a  building,  though  for  some  purposes  it  were  part 
of  the  dwelling-house.^  If  the  offence  be  laid  to  have  been  done 
in  the  night-time,  this  allegation  needs  not  be  proved,  if  the  indict^ 
ment  is  at  common  law  ;  for  it  is  not  material,  unless  made  so  by 
statute.^  Actual  participation  in  the  crime  may  be  shown  by  the 
guilty  possession  of  goods  proved  to  have  been  in  the  house  at  the 
time  of  the  act  done,  even  though  such  possession  may  amount  to 
another  felony.* 


1  Rex  V.  Rickman,  2  East,  P.  C.  1034 ; 
Rex  V.  Pedlev,  Id.  1026  ;  The  People  v. 
Stater,  5  Hill  "(N.  Y.),  R.  401  ;  Common- 
wealth V.  Wade,  17  Pick.  395  ;  The  State 
V.  Lyon,  12  Conn.  487  ;  Supra,  §  10 ;  Ante, 
Vol."  1,  §  65.  In  Massachusetts,  it  is  pro- 
vided by  statute,  that  in  the  prosecution 
of  any  oifence,  committed  upon  or  in  rela- 
tion to,  or  in  any  way  affecting  any  real 
estate,  it  shall  be  sufficient,  and  shall  not 
be  deemed  a  variance,  if  it  be  proved  on 
the  trial,  that,  at  the  time  when  tlie  offence 
was  committed,  either  the  actual  or  con- 
structive possession,  or  the  general  or 
special  property  in  the  whole,  or  in  any 
part  of  such  real  estate,  was  in  the  person 


or  community,  alleged  in  the  indictment  or 
other  accusation,  to  he  the  owner  thereof. 
Rev.  Stats,  ch.  133,  §  11.  Thus,  where  an 
indictment  alleged  the  ownership  of  a 
building  to  be  in  one  W.,  and  the  proof 
was,  that  said  W.  was  joint  lessee  with 
another  person,  it  was  held,  that  the  stat- 
ute entirely  obviated  the  objection  of  a 
variance.  Commonwealth  v.  Harney,  10 
Met.  422. 

■^  Rex  V.  North,  2  East,  P.  C.  1021, 
1022. 

3  Rex  V.  Minton,  2  East,  P.  C.  1021. 

*  Rex  V.  Rickman,  2  East,  P.  C.  1034 ; 
Supra,  §  31,  32,  33. 


52  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 


ASSAULT. 

[*  §  58.  What  the  indictment  charges. 

59.  What  constitutes  an  assault. 

60.  And  what  a  battery. 

61.  Intention  to  do  injury  essential  to  be  proved. 

62.  Negatived  by  proof  of  accident  in  lawful  act. 

63.  Assault  in  performance  of  lawful  act  not  criminal. 

64.  Self-defence  justifies  sufficient  force  to  repel  assault. 

65.  Other  acts  justifying  assault.] 

§  68.  The  indictment  for  a  common  assault  charges  that  the  of- 
fender, at  such  a  time  and  place,  "  with  force  and  arms,  in  and  upon 
one.C.  D.,  in  the  peace  of  this  (State  or  Commonwealth),  then 
and  there  being,^  an  assault  did  make,  and  him  the  said  C.  D. 
then  and  there  did  beat,  wound,  and  ill-treat,  and  other  wrongs  to 
the  said  C.  D.  then  and  there  did,  against  the  peace,"  &c  If  there 
are  circumstances  of  aggravation,  not  amounting  to  a  distinct  of- 
fence, they  are  alleged  before  the  alia  enormia. 

§  59.  An  assault  is  defined  by  writers  on  criminal  law  to  be  an 
intentional  attempt  by  force  to  do  an  injury  to  the  person  of  an- 
other.2  This  allegation,  therefore,  is  proved  by  evidence  of  striking 
at  another  with  or  without  a  weapon,  and  whether  the  aim  be 
missed  or  not ;  or  of  drawing  a  sword  upon  him  ;  or  of  throwing 
any  missile  at  him  ;  or  of  presenting  a  gun  or  pistol  at  him  ;  the 
person  assaulted  being  within  probable  reach  of  the  weapon  or 
missile.^  So,  if  one  rushes  upon  another  or  pursues  him  with  in- 
tent to  strike,  and  in  a  threatening  attitude,  but  is  stopped  imme- 
diately before  he  was  within  reach  of  the  person  aimed  at,  it  is  an 

1  This  allegation  is  unnecessary.     Com-  county,  and  within  the  jurisdiction  of  the 

monwealth  v.  jVIurphy,   6   Monthly  Law  court.       Commonwealth     v.    Tolliver,    8 

Ecporter,  N.  S.  4G0 ;  The  State  ;,'.  Elliott,  Gray,  386 ;    Commonwealth  v.  Creed,  lb. 

7  Blackf.  280.     [*  In  an  indictment  for  an  387.1 

assault  with  a  dangerous   weapon,  under  ^  Whart.  Am.  Crim.   Law,   p.  460;    1 

the  United  States  statute,  the  word  "as-  Russ.  on  Crimes,  750.     And  seean^e,  VoL 

sault"  carries  with  it  an  allegation  of  ille-  2,  §  82. 

gality.     United  States  v.  Lunt,  Si)rague's  »  1  Russ.  on  Crimes,  750;  1  Hawk,  P. 

Decisions,  311.     An  indictment  for  an  as-  C.  ch.  62,  §  1  ;  The  United  States  v.  Hand, 

sault  in  one  town  is  supported  by  proof  of  2  Wash.  C.  C  Rep.  435.     [*  Johnson  v. 

an  assault  in  another   town   in  the  same  State,  35  Ala.  363. J 


PART  v.] 


ASSAULT. 


53 


assault.^  Whether  it  be  an  assault  to  present  a  gun  or  pistol  not 
loaded,  but  doing  it  in  a  manner  to  terrify  the  person  aimed  at,  is 
a  point  upon  which  learned  judges  have  differed  in  opinion .^  So, 
an  assault  is  proved  by  evidence  of  indecent  liberties  taken  with  a 
female,  if  it  be  taken  without  her  consent ;  and  such  consent  a 
child  under  ten  years  of  age  is  incapable  of  giving  ;  ^  but  above 
that  age  she  may  be  capable.*  So,  if  possession  of  a  married  wo- 
man's person  is  indecently  and  fraudulently  obtained  in  the  night, 
by  one  falsely  assuming  to  be  her  husband,  it  is  an  assault ;  and 
her  submission  under  such  mistake  is  no  evidence  of  consent.^  It 
is  the  same  if  a  medical  man  indecently  remove  the  garments  from 
the  person  of  a  female  patient,  under  the  false  and  fraudulent  pre- 
tence that  he  cannot  otherwise  judge  of  the  cause  of  her  illness.^ 
So,  if  a  schoolmaster  take  indecent  liberties  with  the  person  of  a 
female  scholar  without  her  consent,  though  she  do  not  resist,  it  is 
an  assault.^  So,  to  cut  off  the  hair  of  a  pauper  in  an  almshouse 
against  her  consent,  though  under  a  rule  of  the  house,  is  an  as- 


1  Stephen  v.  Myers,  4  C.  &  P.  349.  So, 
if  the  distance  be  such  as  to  put  a  man  of 
ordinary  firmness  under  the  apprehension 
of  a  blow.  The  State  v.  Davis,  1  Ired. 
125.     See  further,  ante,  Vol.  2,  §  82,  84. 

2  In  Regina  v.  St.  George,  9  C.  &  P. 
483,  Parke,  B.  held  it  to  be  an  assault. 
So  it  was  held  in  The  State  v.  Smith,  2 
Humph.  4.57.  [*  State  v.  Shepard,  10 
Iowa,  126.]  And  see  3  Sm.  &  Marsh. 
553;  The  State  v.  Benedict,  11  Verm. 
236  ;  [Morison's  case,  1  Broun,  394,  395  ; 
Beach  v.  Hancock,  7  Foster,  223.]  But 
see  contra,  Blake  v.  Barnard,  9  C.  &  P.  626. 
See  also  Regina  v.  Baker,  1  C.  &  K.  254 ; 
Regina  v.  James,  Id.  530,  which,  however, 
were  cases  upon  the  statute  of  1  Vict.  ch. 
85,  §  3.  [*  In  Richels  v.  State,  1  Sneed 
(Tenn.),  606,  it  is  held  that  the  intent  to 
injure  is  of  the  essence  of  an  assault,  and 
pointing  a  loaded  pistol  is  evidence,  but  not 
conclusive,  of  such  intent.] 

3  Regina  v.  Banks,  8  C.  &  P.  574 ;  Re- 
gina V.  Day,  9  C.  &  P.  722.  There  is  a 
difference  between  consent  and  submission ; 
every  consent  involves  submission ;  but  it 
by  no  means  follows  that  a  mere  submission 
involves  consent.  It  would  be  too  much 
to  say  that  an  adult,  submitting  quietly  to 
an  outrage  of  this  description,  was  not 
consenting;  on  the  other  hand,  the  mere 
submission  of  a  child,  when  in  the  power 
of  a  strong  man,  and  most  probably  acted 
upon  by  fear,  can  by  no  means  be  taken  to 
be  such  a  consent  as  will  justify  the  pris- 
oner in  point  of  law.  Ibid,  per  Cole- 
ridge, J. 


*  Regina  v.  Meredith,  8  C.  &  P.  589; 
Regina  v.  Martin,  9  C.  &  P.  213.  See  Re- 
gina V.  Read,  1  Denison,  C.  C.  377  ;  3 
Cox,  C.  C.  266  ;  2  Car.  &  Kir.  957  ;  Tem- 
ple V.  Mew,  C.  C.  52.  Where  the  prison- 
ers, having  been  convicted  of  a  common 
assault  on  a  girl  of  nine  years  of  age,  she 
having  been  an  assenting  party  to  the  con- 
nection which  took  place,  though,  from 
her  tender  years,  she  did  not  know  what 
she  was  about,  the  conviction  was  held 
wrong,  upon  the  authority  of  Regina  v. 
Martin,  2  Moody,  C.  C.  123.  See  the 
grounds  of  that  case  explained  by  Patte- 
son,  J.,  9  C.  &  P.  215. 

5  Hegina  v.  Saunders,  8  C.  &  P.  265; 
Regina  v.  Williams,  Id.  286;  Regina  v. 
Clarke,  6  Cox,  C.  C.  412;  1  Leading 
Crim.  Cases,  232,  affirming  Rex  v.  Jack- 
son, Russ.  &  Ry.  C.  C.  487;  1  Leading 
Crim.  Cases,  2.34. 

8  Rex  V.  Rosinski,  1  Moody,  C.  C.  12; 
1  Russ.  on  Crimes,  606.  Where  a  medi- 
cal man  had  connection  with  a  girl  four- 
teen years  of  age,  under  the  pretence  that 
he  was  thereby  treating  her  medically  for 
the  complaint  for  which  he  was  attending 
her,  she  making  no  resistance  solely  from 
the  bond  Jide  belief  that  such  was  the  case, 
this  was  held  to  be  certainly  an  assault  and 
probably  a  rape.  Regina  v.  Case,  4  Cox, 
C.  C.  220 ;  1  Denison,  C.  C.  580 ;  Tem- 
ple V.  Mew,  C.  C.  31 ;  1  Eng.  Law  &  Eq. 
R.  544. 

■?  Regina  v.  M'Gavaran,  6  Cox,  C.  C. 
64 ;  Rex  v.  Nichol,  Russ.  &  Ry.  C.  C.  130; 
Regina  v.  Day,  9  C.  &  P.  722. 


54  LAW   OF   EVIDENCE  IN   CRIMINAL  CASES.  [PART  V. 

sault,  the  rule  being  illegal ;  and  if  it  be  done  with  intent  to  de- 
grade her,  and  not  for  the  sake  of  personal  cleanliness,  it  is  an  ag- 
gravation of  the  offence. 1  Evidence  that  the  party  knowingly  put 
into  another's  food  a  deleterious  drug,  to  cause  him  to  take  it,  and 
it  be  taken,  is  sufficient  to  support  the  charge  of  an  assault.^ 

§  60.  A  battery  is  committed  whenever  the  violence  menaced  in 
an  assault  is  actually  done,  though  in  ever  so  small  a  degree,  upon 
the  person.  Every  battery,  therefore,  includes  an  assault,  though 
an  assault  does  not  necessarily  imply  a  battery.  But  in  treating 
of  this  offence,  no  further  notice  needs  to  be  taken  of  this  distinc- 
tion, as  its  effect  ordinarily  is  only  upon  the  degree  of  punishment 
to  be  inflicted. 

§  61.  It  is  to  be  observed,  that  although  an  unintentional  injury, 
done  with  force  to  the  person  of  another,  may  support  a  civil  action 
of  trespass  for  damages  ;  ^  yet  to  constitute  the  criminal  offence  of 
an  assault,  the  intention  to  do  injury  is  essential  to  be  proved.  If, 
therefore,  though  the  attitude  be  threatening,  it  is  so  explained  by 
the  simultaneous  language  as  to  negative  any  present  intention  to 
do  harm,  as,  for  example,  that  "  he  would  strike  if  it  were  not  as- 
size-time," *  or  "  if  he  were  not  an  old  man,"  ^  or  the  like,  it  is  not 
an  assault.  Though  it  is  difficult  in  practice  to  draw  the  precise 
line  which  separates  violence  menaced  from  violence  actually  com- 
menced, yet  the  rule  seems  to  be  this,  that  where  the  purpose  of 
violence  is  accompanied  by  an  act  which,  if  not  prevented,  would 
cause  personal  injury,  the  violence  is  begun,  and  of  course  the  of- 
fence is  committed.^  And  it  seems  not  to  be  necessary  that  the 
violence  should  be  menaced  absolutely  ;  it  may  be  conditionally 
threatened  ;  for  if  one  raise  a  weapon  against  another,  within 
striking  distance,  threatening  to  strike  unless  the  other  performs  a 
certain  act  which  he  thereupon  performs,  and  so  the  violence  pro- 
posed is  not  actually  inflicted  ;  it  is  nevertheless  an  assault.'^ 

§  62.    The  intention  to  do  harm  is  negatived  by  evidence  that  the 
injury  was  the  result  of  mere  accident ;  as,  if  one  soldier  hurts  an- 

1  Forde  v.  Skinner,  4  C.  &  P.  239.  347  ;    The   State   v.    Crow,    1    Ired.  375. 

2  Ret,'ina  v.   Button,   8    C.    &   P.  660.     And  sec  mte,  Vol.  2,  §  83. 

This  case  has  been  overruled.     See  Rcgi-  .    «  The  State  v.  Davis,  1  Ired.  128. 

na  r.  Dilworth,  2  M.  &  Kob.  53;   Retina  ^  The   State   v.   Morgan,   3  Ired.  186. 

i-    Hanson,   2   C    &   K.  912;   Ilegina  y.  [And  see  United  States  r.  Myers,  1  Cranch, 

Walkdcn,  1  Cox,  C.  C.  282.  C.  C.  310;    United  States  v.  Richardson, 

8  See  ante.  Vol.  2,  §  94.  ^  Id.  348 ;  Bloomer  i-.  State,  3  Snecd,  66 ; 

*  Anon.,  i  Mod.  3 ;   Turbcville  v.  Sav-  Read  v.  Coker,   24  Eng.  Law  &  Eq.   R. 

age,  2  Keb.  .54.').  213.] 

'"  Commonwealth  v.  Eyre,    1    S.   &  R. 


PART  v.]  ASSAULT.  55 

other  by  the  discharge  of  his  musket  in  military  exercise  ;  ^  or,  if 
one's  horse,  being  rendered  ungovernable  by  siidden  fright,  runs 
against  a  man  ;  ^  or,  if  a  thing  which  one  is  handling  in  the  course 
of  his  employment  be  carried  by  the  force  of  the  wind  against  an- 
other man,  to  his  liurt.^  But  in  these  cases,  as  we  have  heretofore 
shown  in  civil  actions,  it  must  appear  that  the  act  in  which  the 
defendant  was  engaged  was  lawful,  and  the  necessity  or  accident 
inevitable  and  without  his  fault.*  If  the  act  were  done  by  consent^ 
in  a  laivful  athletic  sport  or  game,  not  dangerous  in  its  tendency,  it 
is  not  an  assault ;  but  if  it  were  done  in  an  unlaivful  sport,  as  a 
boxing-match,  or  prize-fight,  it  is  otherwise.^ 

§  63.  The  criminality  of  this  charge  may  also  be  disproved  by 
evidence  showing  that  the  act  tvas  laivful ;  as,  if  a  parent  in  a  rea- 
sonable manner  corrects  his  child  ;  or,  a  master  his  apprentice  ; 
or,  a  schoolmaster  his  scholar  ;  ^  or,  if  one,  having  the  care  of  an 
imbecile  or  insane  person,  confines  him  by  force  ;  or,  if  any  one 
restrains  a  madman  ;  in  these,  and  the  like  cases,  it  is  not  a  crimi- 
nal assault.'  So,  if  a  shipmaster  corrects  a  seaman  for  negligence 
or  misconduct  in  any  matter  relating  to  his  duty  as  one  of  the 
ship's  crew,  or  tending  directly  to  the  subversion  or  the  discipline 
and  police  of  the  ship.^  But  in  all  these  cases  the  correction  or 
restraint  must  be  reasonable,  and  not  disproportionate  to  the  re- 
quirements of  the  case  at  the  time. 

§  64.  The  act  may  also  be  justified  by  evidence  that  it  was  done 
in  self-defence.  There  is  no  doubt  that  any  man  may  protect  his 
person  from  assault  and  injury  by  opposing  force  to  force  ;  nor  is 
he  obliged  to  wait  until  he  is  struck  ;  for  if  a  weapon  be  lifted  in 

1  Weaver  v.  Ward,  Hob.  134.  ante,  Vol.  2,  §  97  ;  1  Russ.  on  Crimes,  7.5.5. 

2  Gibbons  v.  Pepper,  4  Mod.  405.  One  servant  has  no  right  to  beat  another 
8  Rex  V.  Gill,  1  Stra.  190.  sen^ant,  and  if  an  under  servant  miscon- 
*  Dickenson  v.  Watson,  T.  Jones,  205  ;  ducts  himself,  an  upper  servant  is  not  jus- 

1  Russ.  on  Crimes,  754.     See  ante,  Vol.  2,  tified  in  striking  him.     Regina  v.  Huntley, 

§  85,  94,  and  cases  there  cited.  3  C.  &  K.  142. 

5  See  ante.  Vol.  2,  §  85,  and  cases  there  ^  Turner's  case,  1  Ware,  83 ;  Bangs  v. 
cited  ;  1  Russ.  on  Crimes,  753.  Little,  Id.  506  ;  Hannen  v.  Edes,  15  Mass. 

6  The  State  v.  Pendergrass,  2  Dev.  &  347;  Sampson  c.  Smith,  Id.  365  ;  [Brough- 
Battle,  365.  [A  schoolmaster  is  liable  ton  v.  Jackson,  11  Eng.  Law  &  Eq.  R. 
criminally,  if,  in  inflicting  punishment  386;  Wilkes  ».  Dinsman,  7  How.  (U.  S.) 
upon  his"  pupil,  he  goes  beyond  the  limit  R.  89.  Where  the  defendant  was  author- 
of  reasonable  castigation,  and,  either  in  ized  by  the  father  of  an  infant  to  take  the 
the  mode  or  degree  of  correction,  is  guilty  infant  from  New  York,  where  he  was  stay- 
of  any  unreasonable  and  disproportionate  ing,  to  Cuba,  the  residence  of  the  father, 
■violence  or  force ;  and  whether  the  punish-  and  to  use  secrecy  and  despatch ;  held,  that 
ment  was  excessive  under  the  circumstan-  he  could  not  be  indicted  for  an  assault  for 
ces  of  any  case  is  a  question  for  the  Jury,  secretly  carrying  off  the  child,  no  undue 
Commonwealth  v.  Randall,  4  Gray,  36.]  violence  having  been  used.     Hernandez  v. 

">  Hawk.  P.  C.  b.  1,  ch.  30,  §  23.  "  And  see     Carnobeli,  4  Duer,  642.] 


0 


56 


LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  v. 


order  to  strike,  or  the  danger  of  any  other  personal  violence  be 
imminent,  the  party  in  such  imminent  danger  may  protect  himself 
by  striking  the  first  blow  and  disabling  the  assailant.^  But  here, 
also,  the  opposing  force  or  measure  of  defence  must  not  be  unrea- 
sonably disproportionate  to  the  exigency  of  the  case  ;  for  it  is  not 
every  assault  that  will  justify  every  battery.  Therefore,  if  A. 
strikes  B.,  this  will  not  justify  B.  in  drawing  his  sword  and  cutting 
off  A.'s  hand.2  But  wliere,  upon  an  assault  by  A.,  a  scuffle  en- 
sued, in  the  midst  and  heat  of  which  A.'s  finger  was  bitten  off  by 
B.,  the  latter  was  held  justified.^  If  the  violence  used  is  greater 
than  was  necessary  to  repel  the  assault,  the  party  is  himself 
guilty.* 

§  65.  In  Justification  of  an  assault  and  battery  it  is  also  compe- 
tent for  the  defendant  to  prove  that  it  was  done  to  prevent  a  breach 
of  the  peace,  suppress  a  riot,  or  prevent  the  commission  of  a  felo- 
ny ;  ^  to  defend  the  possession  of  one's  house,  lands,  or  goods  ;  ^  to 
execute  process  ;  '^  or,  to  defend  the  person  of  one's  wife,  husband, 
parent,  child,  master,  or  servant.^     But  in  all  these  cases,  as  we 


1  Bull.  N.  P.  18  ;  Weaver  v.  Bush,  8  T. 
K.  78 ;  Anon.  2  Lewin,  C.  C.  48 ;  1  Russ. 
on  Crimes,  756;  The  State  v.  Briggs,  3 
Ired.  357. 

2  Cook  V.  Beal,  1  Ld.  Raym.  177  ;  Bull. 
N.  P.  18. 

8  Cockcroft  V.  Smith,  1  Ld.  Rayra.  177, 
per  Holt,  C.  J. ;  11  Mod.  43  ;  2  Salk.  642, 
S.  C,  cited  and  expounded  by  Savage,  C. 
J.,  in  Elliott  V.  Brown,  2  Wend.  499. 

*  Regina  v.  Mabel,  9  C.  &  P.  474.  And 
see  Rc.x  v.  Whalley,  7  C.  &  P.  245.  The 
law  on  this  point  was  thus  stated  by  Cole- 
ridge, J.  :  "  If  one  man  strikes  another  a 
blow,  that  other  has  a  right  to  defend  him- 
self, and  to  strike  a  blow  in  his  defence ; 
but  he  has  no  right  to  revenge  himself; 
and  if,  when  all  the  danger  is  past,  he 
strikes  a  blow  not  necessary  for  his  de- 
fence, he  commits  an  assault  and  a  bat- 
tery. It  is  a  common  error  to  supjjose 
that  one  person  has  a  right  to  .strike  an- 
other who  has  struck  him,  in  order  to  re- 
venge himself"  Regina  v.  Driscoll,  Car. 
&  Marshm.  214.  See  also  The  State  v. 
Wood,  1  Bay,  351  ;  Ilannen  ;;.  Edcs,  15 
Mass.  347  ;  Sampson  r.  Smith,  Id.  365 ; 
The  State  v.  Lazarus,  1  Rep.  Const.  C.  34  ; 
The  State  v.  Quin,  2  Const.  Rep.  694  ;  3 
Brev.  515,  S.  C  ;  [Rartictt  v.  Churchill, 
24  Vt.  218;  Scriliner  i'.  Beach,  4  Denio, 
448;  Brown  r.  Gordon,  1  Grav,  182.] 

£>  1  Hawk.  P.  C.  ch.  60,  §23;  1  Russ. 
on  Crimes,  755-757  ;   Bull.  N.  P.  18. 

^  Ibid. ;  Green  v.  Goddurd,  2  Salk.  641 ; 


Weaver  v.  Bush,  8  T.  R.  78 ;  Simpson  v. 
Morris,  4  Taunt.  821  ;  [State  v.  Hooker, 
17  Vt.  658.]  And  see  ante,  Vol.  2,  §  98  ; 
2  Roll.  Abr.  548,  549.  In  Massachusetts, 
it  has  been  recently  held,  that  one  tenant 
in  common  of  a  barn-floor  has  no  right  to 
use  force  and  violence  to  prevent  his  co- 
tenant  from  entering  the  door  leading  to 
the  floor,  though  such  entry  is  with  the  de- 
clared purpose  of  removing  the  wagon  of 
the  owner  then  standing  on  the  floor ;  and 
such  declared  purpose  affords  no  justifi- 
cation of  the  assault.  Commonwealth  v. 
Lakeman,  4  Cush.  597.  [*The  owner  of 
personal  property  is  not  justified  in  assault- 
ing and  obstructing  an  officer  who  attempts 
in  good  faith  to  attach  the  same  upon  a 
process  against  a  third  person,  although 
such  assault  and  obstruction  be  necessary 
to  protect  the  j)roperty  from  being  taken 
by  tiie  officer.  State  v.  Richardson,  38  N. 
li.  208.] 

7  2  Roll.  Abr.  546 ;  1  Russ.  on  Crimes, 
757  ;  Harri-son  v.  Hodgson,  10  B.  &  C.  44.5. 

^  3  Bl.  Comm.  3  ;  1  Russ.  on  Crimes, 
756  ;  1  Hawk.  P.  C.  supi-a.  It  has  some- 
times been  held,  that  a  master  could  not 
justify  an  assault  in  defence  of  his  servant ; 
because,  liaving  an  interest  in  his  service, 
he  might  have  his  remedy  by  a  civil  action. 
But  it  was  otherwise  held  at  a  verv  early 
period,  19  H.  6,  31  i).  ;  2  Roll.  Abr.  546; 
and  it  seems  now  tlie  better  opinion,  that 
the  obligation  of  protection  .and  defence  is 
mutual,  between  master  and   servant.     1 


PART  v.]  ASSAULT.  57 

have  seen  in  others,  no  more  force  is  to  be  used  than  is  necessary 
to  prevent  the  violence  impending  ;  ^  nor  is  any  force  to  be  applied 
in  the  defence  of  the  possession  of  property  until  the  trespasser  has 
been  warned  to  desist,  or  requested  to  depart,  except  in  cases  of 
violent  entry  or  taking  by  a  trespasser,  or  the  like  ;  ^  for  otherwise 
the  party  interfering  to  prevent  wrong  will  himself  be  guilty  of  an 
assault. 

Russ.  on  Crimes,  sttpra,  cites  Tickell  v,  ^  Russ.  on  Crimes,  757  ;  Ante,  Vol.  2, 
Read,  Lofft,  215.  §  98;  Mead's  case,  1  Lewin,  C.  C.  185; 
1  [People  V.  Gnlick,  Hill  &  Den.  229  ;  TuUay  v.  Reed,  1  C.  &  P.  6 ;  Common- 
Brown  V.  Gordon,  1  Gray,  1 82 ;  Common-  wealth  v.  Clark,  2  Met.  23 ;  Imason  " 
wealth  V.  Ford,  5  Id.  475  ;  Common-  Cope,  5  C.  &  P.  193 
wealth  V.  Cooley,  6  Id.  350 ;  State  v. 
Hooker,  17  Vt.  658.] 


58 


LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


BARRATRY. 


[*  §  66.   Barratry  defined.    Indictment  charges  accused  generally. 

67.   Proof  of  commission  of  three  acts  necessary  to  maintain  indictment.] 


§  66.  A  BARRATOE  IS  a  common  mover,  exciter,  or  maintainer 
of  suits  or  quarrels,  in  courts  or  in  the  country.  The  indictment 
charges  the  accused,  in  general  terms,  with  being  a  common  bar- 
rator, without  specifying  any  particular  facts  or  instances  ;  but  the 
court  will  not  suffer  the  trial  to  proceed  unless  the  prosecutor  has 
seasonably,  if  requested,  given  the  accused  a  note  of  the  particular 
acts  of  barratry  intended  to  be  proved  against  him  ;  ^  and  to  these 
alone  the  proof  must  be  confined.^ 


1  Rex  r.  Wylie,  1  New  Rep.  95,  per 
Heath,  J.;  Commonwealth  v.  Davis,  11 
Pick.  432. 

2  Goddard  v.  Smith,  6  Mod.  262 ;  1 
Russ.  on  Crimes,  184.  "It  is  now  a  gen- 
eral rule,"  said  Merrick,  J.,  in  Common- 
wealth V.  Giles,  1  Gray,  469,  "  perfectly 
well  establislied,  that  in  all  legal  proceed- 
ings, civil  and  criminal,  bills  of  particulars 
or  specitications  of  facts  may  and  will  be 
ordered  by  the  Court  whenever  it  is  satis- 
fied that  "there  is  danger  that  otherwise  a 
party  may  be  deprived  of  his  rights,  or 
that  justice  cannot  be  done.  Whether 
such  an  order  shall  be  made  is  a  question 
within  the  discretion  of  the  Court  where 
the  cause  in  which  it  is  asked  for  is  pend- 
ing, to  be  judged  of  and  determined  upon 
the  peculiar  facts  and  circumstances  at- 
tending it.  We  are  inclined  to  think  that 
such  a  dntermiiiMtion  is  final  in  the  Court 
where  it  is  made,  and  is  not  open  to  re-cx- 
aminat'on  or  revisicm.  But  whether  this 
be  so  or  not,  when  it  is  once  made,  it  con- 
cludes the-  rights  of  all  parties  who  are  to 
be  affected  by  it ;  and  he,  who  has  fur- 
nished a  bill  of  particulars  under  it,  must 
be  confined  to  the  particulars  he  has  sjieci- 
fied,  as  closely  and  effectually  as  if  they 
constituted  essential  allegations  in  a  spe- 
cial declaration.  Commonwealth  v.  Snel- 
img,  1.5  Pick.  .321." 

The   indictment  for   this   offence  is  as 
follows :  — 


The  Jurors  (&c.),  upon  their  oath  pre- 
sent, That ,  of ,  in  the  county 

of ,  on ,  and  on  divers  other 

days  and  times,  as  well  before  as  after- 
wards, was,  and  yet  is,  a  common  barrator, 
and  that  he  the  said  ,  on  the  said 


day  of ,  and  on  divers  other 

days  and  times,  as  well  before  as  after- 
wards, at aforesaid,  in  the  county 

aforesaid,  divers  quarrels,  strifes,  suits,  and 
controversies,  among  the  honest  and  quiet 
citizens  of  said  (State)  then  and  there  did 
move,  procure,  stir  up,  and  excite,  against 
the  peace  of  the  (State)  aforesaid. 

The  following  precedent  is  taken  from 
Train  and  Heard's  Precedents  of  Indict- 
ments, p.  58 :  — 

Indictment  for  being  a  Common  Barrator. 
The  Jurors,  etc.,  upon  their  oath  pre 
sent,  that  C.  I).,  late  of  B.,  in  the  county 
of  S.,  laborers,  on  the  first  day  of  June,  in 

the  year  of  our  Lord ,  at  B.,  in  the 

county  of  S.,  and  on  divers  other  days  and 
times  between  that  day  and  the  day  of  tlie 
finding  of  this  indictment,  at  B.  aforesaid, 
in  the  county  aforesaid,  divers  quarrels, 
strifes,  suits,  and  controversies  among  the 
honest  and  peaceable  citizens  of  said  Com- 
monwealth then  ami  there  on  the  days  and 
times  aforesaid,  did  move,  procure,  stir  up, 
and  excite.  And  so  the  Jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.,  at  B.  aforesaid,  in  the  county 


PART  v.]  BARRATRY.  59 

§  67.  The  offence  is  proved  by  evidence  of  the  moving,  exciting, 
and  prosecuting  of  suits  in  which  the  party  has  no  interest,  or  of 
false  suits  of  his  own,  if  designed  to  oppress  the  defendants ;  or, 
of  the  spreading  of  false  rumors  and  calumnies,  whereby  discord 
and  disquiet  are  spread  among  neighbors.^  But  proof  of  the  com- 
mission of  three  such  acts,  at  least,  is  necessary  to  maintain  the 
indictment.^  The  bringing  of  an  action  in  the  name  of  a  fictitious 
plaintiff  is  a  misdemeanor ;  ^  but  it  does  not  amount  to  barratry 
unless  it  be  thrice  repeated. 

aforesaid,  on  said  days  and  times  was  and  ^  Commonwealth    v.    Davis,    11    Pick, 

still  is  a  common  barrator ;  to  the  common  432,  435.     In  Commonwealth  v.  McCul- 

nuisance,  etc.,  and  against  the  peace,  eta  loch,  15  Mass.  227,  the  defendant  was  held 

The  words  "  common  barrator  "  are  in-  not  to  be  guilty  of  barratry,  because  there 

dispensably  necessary  to  be  used  in  an  in-  was  no  oppression  in  bringing  three  writs 

dictment  for  this  crime.     2  Saund.  308,  n.  before  a  Justice  of  the  Peace,  instead  of 

(1) ;  Rex  V.  Hardwicke,  1  Sid.  282 ;  Reg.  one  in  the  Court  of  Common  Pleas,  the 

V.  Hannon,  6  Mod.  311;   2  Chitty,  Crim.  costs  of   the  three  not  being  more  than 

Law,  232.  those  of  the  one.      [See  Briggs  v.  Eay- 

1  1  Inst.  368  a;    1  Hawk.  P.  C.  eh.  81.  mond,  11  Cush.  274.] 

For  a  copious  description  of  this  offence,  ^  4  Bl.  Comm.  134 ;  1  Russ.  on  Crimes, 

Bee  the  case  of  Barrators,  8  Rep.  36.  185. 


60  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 


BLASPHEMY. 

[*  §  68.   AU  writings  against  any  essential  part  of  the  Christian  religion,  with  malicious 
design  to  calumniate,  blasphemous. 

69.  Statutes  against  this  oftence  have  not  always  abrogated  common  law. 

70.  Intent  of  defendant  to  be  collected  by  jury  from  circumstances  of  the  case.] 

§  68.  This  crime,  in  a  general  sense,  has  been  said  to  consist  in 
speaking  evil  of  the  Deity,  with  an  impious  purpose  to  derogate 
from  the  divine  majesty,  and  to  alienate  the  minds  of  others  from 
the  love  and  reverence  of  God.^  Its  mischief  consists  in  weaken- 
ing the  sanctions  and  destroying  the  foundations  of  the  Christian 
religion,  which  is  part  of  the  common  law  of  the  land,  and  thus 
weakening  the  obligations  of  oaths  and  the  bonds  of  society. 
Hence,  all  contumelious  reproaches  of  our  Saviour  Jesus  Christ,^ 
all  profane  scoffing  at  the  Holy  Bible,  or  exposing  any  part  there- 
of to  contempt  and  ridicule, ^  and  all  writings  against  the  whole  or 
any  essential  part  of  the  Christian  religion,  striking  at  the  root 
thereof,  not  in  the  way  of  honest  discussion  and  for  the  discovery 
of  truth,  but  with  tlie  malicious  design  to  calumniate,  vilify,  and 
disparage  it,  are  regarded  by  the  common  law  as  blasphemous,  and 
punished  accordingly.* 

1  Commonwealth  v.  Knceland,  20  Pick.  *  Updegraph  v.  The  Commonwealth,  11 

21.3,  per  Shaw,  C.  J.     For  other  .ind  more  S.  &  R.  .394  ;  Rex  v.  Carlisle,  3  B.  &  Aid. 

particular  descriptions  of  this  offence,  see  161;    2  Stark,  on    Slander,  p.   144-147; 

4  131.  Coram.  .')9.     The  People  v.  Ruggles,  Commonwealth  v.  Knceland.  20  Pick.  2iO, 

8  ■Johns.  293,  jier  Kent,  C.  J. ;  2  Stark,  on  224,  22.5 ;    The  People  v.  Ruggles,  supra. 

Slander,  p.  1 29  - 1 51.  The  indictment  for  verbal  blasphemy  may  be 

-  The   State  v.  Chandler,  2   Ilarringt.  thus  :  — 

(Del.)  553  ;   Andrew  v.  New  York  Bible  The  Jurors  (&c.),  on  their  oath  present, 

Society,  4  Sandf.  156  ;  Rex  v.  Woolstun,  2     that ,  of ,  in  the  county  of 

Stra.   834,   more   fully   reported  in   Fitzg. ,  intending  the  holy  name  of  God, 

64  ;    Rex  v.  Waddington,   1   B.  &  C.  26  ;  [and  the  jjcrson  aiul  character  of  our  Lord 

The  People  v.  Ruggles,  8  Johns.  290  ;    1  and   Saviour  Jesus    Christ,]    to    dishonor 

Russ.  on  Crimes,  230  ;   Rex  v.  Taylor,  1  "  and  blaspheme,  and  to  scandalize  and  vilify 

Vent.  293.  the  [Holy  Scrij)tures  and    the)   Christian 

3  Updegraph  v.  The  Commonwealth,  11  religion,  "and  to  bring  [them]  into  disbelief 

S.  &  R.  394  ;    1    Russ.  on  Crimes,  230  ;    2     and   contcm])t,    on  ,  at  ,  in 

Stark,  on  Slander,  p.  138-143;  Common-  the  county  aforesaid,  did,  *  wilfully,  ma- 
wealth  V.  Knceland,  20  Pick.  206,  224,  liciously,  and  blasjihemously,  with  a  loud 
225.  voice,  utter  and  publish  in  the  presence 


PART  v.] 


BLASPHEMY. 


61 


§  69.  In  most  of  the  United  States  statutes  have  been  enacted 
against  this  offence  ;  but  these  statutes  are  not  understood  in  all 
cases  to  have  abrogated  the  common  law  ;  the  rule  being,  that 
where  the  statute  does  not  vary  the  class  and  character  of  an  of- 
fence, as,  for  example,  by  raising  what  was  a  misdemeanor  into  a 
felony,  but  only  authorizes  a  particular  mode  of  proceeding  and  of 
punishment,  the  sanction  is  cumulative,  and  the  common  law  is 
not  taken  away.^ 

§  70.  The  p-oo/ of  the  indictment  for  this  crime  will  consist  of 
evidence  showing  that  the  defendant  uttered  or  published  the 
words  charged,  and  with  the  malicious  and  evil  intent  alleged. 
The  intent  is  to  be  collected  by  the  Jury  from  all  the  circumstan- 
ces of  the  case.^ 


and  hearing  of  divers  good  citizens  of  this 
(State)  the  following  false,  profane,  scan- 
dalous, and  blasphemous  words,  to  wit : 
[here  state  the  words,  verbatim,  ivith  proper  in- 
uendoes,  if  the  case  requires  it ;]  *  in  con- 
tempt of  the  Christian  religion  and  of 
good  morals  and  government,  in  evil  ex- 
ample to  others,  and  against  the  peace  of 
the  (State)  aforesaid. 

The  indictment  for  publishing  a  blas- 
phemous libel  omits  the  words  between  the 
two  asterisks  in  the  above  precedent,  and 
in  their  place  charges  as  follows  :  — 

unlawfully   and   wickedly  print 

and  publish,  and  cause  to  be  printed  and 
published,  a  false,  scandalous  and  blas- 
phemous libel  of  and  concerning  the 
Christian  religion,  containing  therein, 
among  other  things,  divers  scandalous  and 


blasphemous  matters,  of  and  concerning 
the  Christian  religion,  according  to  the 
tenor  following,  to  wit :  [here  set  forth  the 
libel  in  hcec  verba,  ivith  proper  inuendoes],  in 
contempt  [&c.,  as  above]. 

1  Commonwealth  v.  Ayer,  3  Cush.  150; 
Rex  V.  Carlisle,  3  B.  &  Aid.  161,  per  Bay- 
ley,  J. ;  Rex  V.  Robinson,  2  Burr.  803,  per 
Ld.  Mansfield.  And  see  Ilex  v.  Wadding- 
ton,  1  B.  &  C.  26. 

-  [*  The  prisoner's  mere  confession  that 
he  used  the  words  charged  will  not  au- 
thorize a  conviction  for  blasphemy.  The 
prosecutor  must  show  that  an  offence  was 
committed,  and  some  one  must  have  heard 
the  words.  Drunkenness  is  no  excuse, 
and  only  aggravates  the  offence.  People 
V.  Porter,  2  Parker,  C.  R.  (N.  Y.)  14.] 
See  further,  infra,  tit.  Libel. 


62 


LAW   OF   EVIDENCE  IN   CRIMINAL   CASES. 


[part  V. 


BRIBERY. 1 

[*  §  71.  Bribery  may  be  committed  by  any  person  in  official  station  using  power  of  his 
place  for  reward  ;  and  by  any  person  giving  or  offering  rewards  for  public 
office. 

72.  Offer  of  bribe  completes  offence  so  far  as  person  offering  is  concerned. 

73.  What  constitutes  giving  money.] 


§  71.    Bribery  is  generally  defined  to  be  the  receiving  or  offer 
ing  of  any  undue  reward  by  or  to  any  person  whose  ordinary  pro- 


1  The  indictment  for  bribing,  or  at- 
tempting to  bribe  a  Judge,  may  be  thus  : 

The  Jurors  (&c.),  on  their  oath  present, 

that  A.    B.,  of ,   on ,    at 

'■ — ,  within  the  county  aforesaid,  did 

unlawfully,  wickedly,  and  corruptly  give  or 

offer  to  give),  to  one  C.  D.  of ,  he 

the  said  C.  D.  being  then  and  there  a 
Judge  (or,  one  of  the  Justices)  of  the  [here 
insert  the  sti/le  of  the  Com-t),  duly  and  legal- 
ly appointed  and  (lualificd  to  discharge  the 

duties   of  that  office,  the  sum  of 

dollars,  as  a  bribe,  present,  and  reward,  to 
obtain  the  opinion,  judgment,  and  decree 
of  him  the  said  C.  D.  in  a  certain  suit 
(controversy  or  cause)  then  and  there  de- 
pending before  him  the  said  C.  D.  as 
Judge  as  aforesaid  (and  others  the  associ- 
ate Justices  of  said  Court),  to  wit :  (here 
state  the  nature  of  the  suit  or  proceeding),  the 
said  office  of  Judge  (or  Justice)  being  then 
and  there  an  office  of  trust  concerning  the 
administration  of  justice  within  the  said 
(United  States  or  State  or  Commonwealth), 
against  the  peace,  &c. 

This  precedent  was  drawn  upon  the 
statute  of  the  United  States,  of  April  30, 
1790,  §  •2\,  Vol.  1,  p.  117,  Petcrs's  cd.  (see 
Davis's  Prcccd.  p.  79),  but  is  conceived  to 
be  efpuilly  good,  being  varied  as  above,  in 
a  prosecution  at  tonimon  law. 

The  following  precedent  is  taken  from 
Train  and  Heard's  Precedents  of  Indict- 
ments, p.  62  :  — 

Indictment  for  attempting  to  Bribe  a   Con- 
stable. 
The  Jurors,  etc.,  upon  their  oath  pre- 
sent, that  on  the  first  day  of  June,  in  the 
year  of  our  Lord ,  at   B.,  in   the 


county  of  S.,  one  A.  C,  Esquire,  then  and 
yet  being  one  of  the  Justices  of  the  Peace 
within  and  for  the  said  county  of  S.,  duly 
qualified  to  discharge  and  perform  the  du- 
ties of  said  office,  did  then  and  there  under 
a  certain  warrant  under  his  hand  and  seal, 
in  due  form  of  law,  bearing  date  the  day 
and  year  aforesaid,  directed  to  all  consta- 
bles and  other  peace  officers  of  the  said 
county,  and  especially  to  J.  N.,  thereby 
commanding  them,  upon  sight  thereof,  to 
take  and  bring  before  the  said  A.  C,  so 
being  such  Justice  as  aforesaid,  or  some 
other  Justice  of  the  Peace  within  and  for 
the  said  county  of  S.,  the  body  of  D.  F., 
late  of  B.  aforesaid,  in  the  county  afore- 
said, to  answer,  etc.  etc.  as  in  the  icarrant ; 
and  which  said  warrant  afterwards,  to  wit, 
on  the  day  and  year  aforesaid,  at  B.  afore- 
said, in  the  county  aforesaid,  was  deliv- 
ered to  the  said  J.  N.,  then  being  one  of 
the  constables  of  said  B.,  to  be  executed  in 
due  form  of  law.  And  the  Jurors  afore- 
said, u])on  their  oath  aforesaid,  do  further 
present,  that  J.  S.,  well  knowing  the  prem- 
ises, afterwards,  to  wit,  on  the  day  and 
year  aforesaid,  at  B.  aforesaid,  in  the  coun- 
ty aforesaid,  unlawfully,  wickedly  and  cor- 
ruptly did  offer  unto  the  said  J.  N.,  so  be- 
ing constable  as  aforesaid,  and  then  and 
there  having  in  his  custody  and  possession 
the  said  warrant  so  delivered  to  him  to  be 
•executed  as  aforesaid,  the  simi  of  fifty  dol- 
lars, if  the  said  J.  N.  would  refrain  from 
executing  tlu'  said  warrant,  and  from  tak- 
ing and  arresting  the  said  1).  F.  under  and 
by  virtue  of  tlie  same,  for  and  during  four- 
teen days  from  that  time,  that  is  to  say, 
from  the  time  the  said  J.  S.  so  offi'rcd  the 
said  sum  of  fifty  dollars  to  the  said  J.  N. 


PART  v.]  BRIBERY.  63 

fession  or  business  relates  to  the  administration  of  public  justice, 
in  order  to  influence  his  behavior  in  office  and  incline  him  to  act 
contrary  to  the  known  rules  of  honesty  and  integrity.^  But  it  is 
also  taken  in  a  larger  sense,  and  may  be  committed  by  any  person 
in  an  official  situation,  who  shall  corruptly  use  the  power  and  in- 
terest of  his  place  for  rewards  or  promises  ;  and  by  any  person  who 
shall  give  or  offer  or  take  a  reward  for  offices  of  a  public  nature  ;  or 
shall  be  guilty  of  corruptly  giving  or  promising  rewards,  in  order 
to  procure  votes  in  the  election  of  public  officers. ^  Thus  it  has  been 
held  bribery  by  the  common  law  for  a  clerk  to  the  agent  for  prison- 
ers of  war  to  take  money  in  order  to  procure  the  exchange  of  some 
of  them  out  of  their  turn  ;  ^  or,  for  one  to  offer  to  a  cabinet  minister 
a  sum  of  money  to  procure  from  the  crown  an  appointment  to  a 
public  office  ;  *  or,  corruptly  to  solicit  an  officer  of  the  customs, 
whose  duty  it  was  to  seize  forfeited  goods,  to  forbear  from  seizing 
them  ;  ^  or,  to  promise  money  to  a  voter  for  his  vote  in  favor  of  a 
particular  ticket  or  interest  in  the  election  of  city  officers,'^  or  mem- 
bers of  parliament.^ 

§  72.  The  misdemeanor  is  complete  by  the  offer  of  the  bribe,,  so 
far  as  the  offer  is  concerned.  If  the  offer  is  accepted,  both  parties 
are  guilty.  And  though  the  person  bribed  does  not  perform  his 
promise,  but  directly  violates  it,  as,  for  example,  if,  in  the  case  of 
an  election,  he  votes  for  the  opposing  candidate  or  interest,  the 
offence  of  the  corrupter  is  still  complete.^  So,  though  the  party 
never  intended  to  vote  according  to  his  promise,  yet  the  offerer  is 
guilty.9 

§  73.  If  it  be  alleged,  in  an  indictment  for  corrupting  a  voter, 
that  he  had  a  right  to  vote,  this  allegation  will  be  sufficiently  proved 

as  aforesaid.     And  so  the  Jurors  aforesaid,  So,  where  several  persons  mutually  agreed 

upon  their  oath  aforesaid,  do  say,  that  the  to  procure  for  another  an  appointment  to 

said  J.  S.  on  the  first  day  of  June  in  the  a  public  office,  for  a  sum  of  money,  to  be 

year  aforesaid,  at  B.  aforesaid,  in  the  coun-  divided  among  them,  it  was  held  a  misde- 

ty  aforesaid,  in  manner   and   form  afore-  meanor  at  common  law.     Rex  v.  Pollman 

said,  did  unlawfully  attempt  and  endeavor  et  al.  2  Campb.  229. 

to  bribe  the  said  J.  N.,  so  being  constable  ^  Rex  v.  Everett,  3  B.  &  C.  114. 

as  aforesaid,  to  neglect  and  omit  to  do  his  ^  Rex  v.  Plympton,  2  Ld.  Raym.  1377. 

duty  as  such  constable,  and  to  refrain  from  ^  Rex  v.  Pitt,  3  Burr.  1335.  1338. 

taking  and  arresting  the  said  D.  F.  under  ^  Sulston    v.    Norton,    3   Burr.    1235; 

and  by  virtue  of  the  warrant  aforesaid;  Harding  v.  Stokes,  2  M.  &  W.  233;  Hen- 

against  the  peace,  etc.  slow  v.  Fawcett,  3  Ad.  &  El.  51.     The  last 

1  3  Inst.  145;  1  Russ.  on  Crimes,  154;  two  cases  were  actions  upon  the  statute; 
4  Bl.  Comm.  139 ;  1  Hawk.  P.  C.  ch.  67.  but  the  doctrine  is  that  of  the  common 

2  Ibid.  law. 

8  Rex  V.  Beale,  cited  1  East,  183.  ^  Henslow  v.  Fawcett,  supra,  per  Patter- 

*  Rex  V.  Vaughan,  4  Bnrr.  2494  ;  Stock-     son,  J.,  and  Coleridge,  J. 
well  V.  North,  Noy,  102;  Moor,  781,  S.  C. 


64  LAW   OF   EVIDENCE   IN   CRIMDIAL   CASES.  [PART  V. 

by  evidence  that  he  actually  did  vote,  without  challenge  or  objec- 
tion.^  The  allegation  of  the  payment  of  money  to  that  voter,  may 
be  proved  by  evidence  that  it  was  under  color  of  a  loan,  for  which 
his  note  was  taken,  if  it  were  at  the  same  time  agreed  that  it 
should  be  given  up,  after  he  had  voted.2  So,  if  the  corruptor's 
own  note  were  given  for  the  money .^  So,  if  the  transaction  were 
in  the  form  of  a  wager  or  bet  with  the  voter,  that  he  would  not 
vote  for  the  offerer's  candidate  or  ticket.*  So,  if  the  voter  re- 
ceived from  the  offerer  a  card,  or  token,  in  one  room,  which  he 
presented  to  another  person  in  another  room,  and  thereupon  re- 
ceived the  money,  it  is  evidence  of  the  payment  of  money  by  the 
former.^ 

1  Rigg    V.    Curgenven,    2    Wils.  395 ;      not.     Cooper  v.   Slade,   36  Eng.  Law  & 
Comb  V.  Pitt,  cited  Ibid.  398.  Eq.  R.  152.]  ,    ^   .,,. 

2  Sulston  V.  Norton,  3  Burr.  1235.  [*  The  offer  to  furnish  land,  buildings, 

3  j^jjjj  &c.,  or   to   build   a  bridge   between   two 
*  1  Hawk.  P.  C.  ch.  67,  §  10  (n),  cites     towns,  or  the  gift  by  individuals  of  their 

Lofft    552.  promissory  notes  to  the  county  school  com- 

5  Webb  V.  Smith,  4  Bing.  N.  C.  373.  pany  as  an  inducement  to  the  voters  to  vote 

rUndcr  the  Stats.   iV  &  18   Vict.  c.    102,  in  favor  of  a  removal  of  the  county  seat,  is 

makino-  it  indictable  "to  promise  money  not  bribery  within  the  meaning  of  the  Iowa 

to  a  voler  in  order  to  induce  him  to  vote,"  Code.     Dishon  v.  Smith,  10  Iowa,  212. 

a  promise  to  a  voter  of  his  travelling  ex-  It  is  suggested,  in  the  loregoing  case,  that 

penses  on  condition  that  he  will  come  and  the  offer  must  be  intended  to  aftect  the  per- 

vote  for  the  promisor,   is  criminal ;    but  formance  of  a  legal  duty  and  not  a  mere 

such  a  promise  without  such  condition  is  moral  duty.] 


PART  v.]  BURGLARY.  66 


BURGLARY.i 

[*  §  74.   Burglary  deflned. 

75.  Not  essential  th.it  breaking  and  entering  both  be  done  same  night. 

76.  Breaking  may  be  actual  or  constructive. 

77.  Constructive  breaking  when  admission  is  obtained  by  threat  or  fraud. 

78.  Actual  entry  necessary,  but  need  not  be  entry  of  person. 

79.  Building  entered  must  be  dwelling-house  and  inhabited. 

80.  Dwelling-house  comprehends  all  out-buildings  which  are  parcel  thereof,  though 

not  contiguous  to  it. 

81.  Felonious  breaking  and  entering  room  of  a  lodger  having  no  separate  outer 

entrance  is  burglary  in  house  of  general  owner. 

82.  Felony  actually  committed,  proof  of  intent.    Felony  by  statute,  sufficient. 

83.  Time  of  breaking  may  be  inferred  from  circumstances  of  case.] 

§  74.  This  offence  is  usually  defined  in  the  words  of  Lord 
Coke,  who  says  that  a  burglar  is  "  he  that,  by  night,  hreaketh  and 
entereth  into  a  mansion-house,  with  intent  to  commit  a  felony."  ^ 
Evidence  of  all  these  particulars  is  therefore  necessary,  in  order  to 
maintain  the  indictment. 

§  75.  In  regard  to  the  time,  the  malignity  of  the  offence  consists 
in  its  being  done  in  the  night,  when  sleep  has  disarmed  the  owner, 
and  rendered  his  castle  defenceless.  And  it  is  night,  in  the  sense 
of  the  law,  when  there  is  not  daylight  \crepusculum  or  diluculum'] 

1  The  form  of  an  indictment  for  bur-  ing-house    feloniously  and    burglariously 

glarv,  at  common  law,  is  as  follows  :  —  did  steal,  take,  and  carry  away ;  [against 

The  Jurors  (£c.)  upon  their  oath  pre-  the  peace  of  the  State  {or  Commonwealth) 

sent,  that  {vaming  the  prisoner)  late  of ,  aforesaid.     [*  The  indictment  must  state 

on  ,  about  the  hour  of  ,  in  the  the  value  of  the  goods   stolen,   to  show 

night  of  the   same  day,   with   force  and  whether  a  felony,  —  an  essential  ingredi- 

arms,  at ,  in  the  county  aforesaid,  the  ent  of  burglary,  — was  or  not  committed. 

dwelling-house  of  one (miming  the  oc-  People  v.  Murray,  8  Cal.  .519.] 

cupant),  there  situate,  feloniously  and  bur-  "^  3  Inst.  63;    1   Russ.  on  Crimes,  785. 

glariously  did  break  and  enter,  with  intent  Wilmot  (Digest  of  the  Law  of  Burglary, 

the  goods  and  chattels  of  the  said  (occu-  p.  3)  defines  this  crime  as  follows  :  A  burg- 

pant)  in  the  said  dwelling-house  then  and  lar,  at  common  law,  is  he  that  by  night 

there  being,  then  and  there  feloniously  and  feloniously  breaketh  and  entereth  into  the 

burglariously    to    steal,    take,    and   carry  dwelling-house  of  another.     Therefore,  the 

away;   \if  goods  were  actually  stolen,  add  as  breaking  and  entering  a  dwelling-house, 

follows :  —  and  one  {here  describe  the  goods,  with  intent  to  cut  oft'  an  ear  of  an  inhabit- 

alleging  the   value  of  each  article),  of  the  ant,  is  not  a  felony.      Commonwealth  v. 

value  of  dollars,  of  the  goods  and  Newell,  7  Mass.  247 ;  nor  a  breaking  and 

chattels  of  the  said  {occupant)  in  the  dwell-  entering  with  intent  to  commit  adultery, 

ing-house  aforesaid  then  and  there  being  The  State  v.  Cooper,  16  Verm.  551. 
found,  then  and  there  in  the  same  dwell- 

VOL.  III.  5 


06 


LAW   OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


enough  left  or  begun,  to  discern  a  man's  face  withal.^  The  light 
of  the  moon  has  no  relation  to  the  crime.^  Both  the  breaking  and 
entering  must  be  done  in  the  night-time ;  but  it  is  not  essential 
that  both  be  done  in  the  same  night.^ 

§  76.  The  breaking  of  the  house  may  be  actual,  by  the  applica- 
tion of  physical  force ;  or  constructive,  where  an  entrance  is  ob- 
tained by  fraud,  threats,  or  conspiracy.  An  actual  breaking  may 
be  by  lifting  a  latch  ;  making  a  hole  in  the  wall ;  *  descending  the 
chimney  ;^  picking,  tiirning  back,  or  opening  the  lock,  with  a  false 
key  or  other  instrument ;  ^  removing  or  breaking  a  pane  of  glass, 
and  inserting  the  hand  or  even  a  finger ;  "^  pulling  up  or  down  an 
unfastened  sash  ;  ^  removing  the  fastening  of  a  window,  by  insert- 
ing the  hand  through  a  broken  pane ;  ^  pushing  open  a  window 


^  [See  Commonwealth  v.  Williams,  2 
Cush.  582.  In  Massachusetts,  by  Stat. 
1847,  ch.  13,  the  night-time  is  declared  to 
be,  in  all  criminal  cases,  the  time  between 
one  hour  after  sunset  and  one  hour  before 
sunrise.] 

"  4  Bl.  Comm.  224 ;  1  Hale,  P.  C.  550, 
551  ;  Commonwealth  v.  Chevalier,  7 
Dane's  Abr.  134 ;  1  Gabbett,  Crim.  Law, 
169;  The  State  v.  Bancroft,  10  N.  Hamp. 
105. 

3  1  Hale,  P.  C.  551 ;  1  Russ.  on  Crimes, 
797;  1  Gabbett,  Crim.  Law  176,  177; 
Rex  V.  Smith,  Kuss.  &  Ky.  417.  The 
breaking  at  a  different  j)eriod  from  the  en- 
tering must  clearly  show  an  intent  to  com- 
mit felony.  And  a  party  present  at  the 
breaking  on  the  first  night,  but  not  pres- 
ent at  the  entering,  on  tlie  second,  is  still 
guilty  of  the  whole  offence.  Hex  i>.  Jor- 
dan, 7  C.  &  P.  432.  "  I  should  submit," 
says  Wilmot  (Dig.  of  the  Law  of  Burgla- 
ry, p.  9),  "that  a  ease  might  exist,  where 
such  a  principle  would  work  great  injus- 
tice. Suppose  thieves  to  break  togetlicr, 
and  be  disturbed,  or  find  a  formidable  re- 
sistance likely  to  be  made,  and  separate, 
leaving  the  burglary  incom])lcte,  and  with- 
out any  intention  of  resuming  operations, 
and  the  next  night  some  of  the  party,  un- 
known to  the  rest,  make  an  entry,  this 
would  be  repugnant  to  the  constituents  of 
burglary,  which  require  that  there  should 
be  both  a  breaking  and  entering,  and  that 
one  without  the  other  renders  the  offence 
incomplete.  Besides,  in  such  a  case,  there 
would  lie  no  torus  jifrnitiir,  which  the  in- 
dulgence of  our  law  allows  even  in  the 
worst  offences.  Again,  supjiose  A.  and  B. 
break  a  dwelling-liouse  on  a  certain  night, 
intending  on  the  following  night  to  enter; 
A.  enters  alone,  and  unknown  to  B.,  in 
the  same  night,  ho])ing  thereby  to  gain  a 


greater  share  of  the  plunder,  how  would  B. 
be  particeps  criminis  to  that  act  of  A.  ?  Or 
suppose  that  A.  and  B.  break  a  dwelling- 
house  on  a  certain  night,  intending  on  the 
following  night  to  enter.  On  the  follow- 
ing night  B.  alone  enters,  and  being  re- 
sisted commits  murder,  would  A.  be  parti- 
ceps a-imhtis  in  the  murder?  On  the 
whole,  it  is  submitted,  that  this  is  a  ques- 
tion deserving  of  further  consideration." 
[*  It  must  be  proved  directly  or  indirectly 
that  the  offence  was  committed  in  the 
night.  State  v.  Whit,  4  Jones  Law  (N. 
C.)  349.] 

*  1  Hale,  P.  C.  559  ;  2  East,  P.  C.  488. 
See  1  Gabbett,  Crim.  Law,  169-172;  The 
State  V.  Wilson,  Coxe,  439 ;  Rex  v.  Jor- 
dan, 7  C.  &  P.  432. 

^  Rex  r.  Brice,  Kuss.  &  Ry.  450.  [*  An 
entry,  at  night,  through  a  chimney,  into  a 
log-cabin,  in  which  the  prosecutrix  dwells, 
and  stealing  goods  therein,  will  constitute 
burglary,  although  the  chimney,  made  of 
logs  and  sticks,  may  be  in  a  state  of  decay, 
and  not  more  than  five  and  a  half  feet 
high  (Pearson,  C.  J.,  dissentinsj).  State  v. 
Willis,  7  Jones  Law  (N.  C.)  190.] 

^  1  Hale,  P.  C.  552 ;  1  Huss.  on  Crimes, 
786.  And  sec  Pugh  v.  Griffith,  7  Ad.  & 
El.  827. 

"  Rex  V.  Davis,  Russ.  &  Rv.  499 ;  Rex 
V.  Pcrkes,  1  C.  &  P.  300;  Regina  r.  Bird, 
9  C.  &  P.  44.  So  putting  the  head  out  of 
the  skylight,  is  a  sufhcicnt  breaking  out. 
Rex  I'.  M'Kearney,  Jebb,  99. 

"  Hex  V.  Haines,  Huss.  &  Ry.  451  ;  Rex 
.&  Hyams,  7  C.  &  P.  441.  So  is  cutting 
and  tearing  down  a  netting  of  twine,  nailed 
over  an  o])en  window.  Commonwealth  v. 
Stei)lienson,  8  I'ick.  354.  See  Hunter  v. 
The  Commonwealth,  7  Gratt.  641. 

9  Rex  V.  Robinson,  1  Moody,  C.  C.  327. 
And  see  Rex  v.  Bailey,  Russ.  &  Ry.  341. 


PAET  V.]'  BURGLARY.  67 

which  moved  on  hinges  and  was  fastened  by  a  wedge ;  "^  breaking 
and  opening  an  inner  door,  after  having  entered  through  an  open 
door  or  window ;  ^  or  other  like  acts  ;  and  even  by  escaping  from  a 
house,  by  any  of  these  or  the  like  means,  or  by  unlocking  the  hall 
door,  after  having  committed  a  felony  in  the  house,  though  the  of- 
fender were  a  lodger.^  Whether  it  would  be  burglary,  in  a  guest 
at  an  inn,  to  open  his  own  chamber  door  with  a  felonious  intent, 
is  greatly  doubted.*  The  breaking  must  also  be  into  some  apart- 
ment of  the  house,  and  not  into  a  cupboard,  press,  locker,  or  the 
like  receptacle,  notwithstanding  these,  as  between  the  heir  and  ex- 
ecutor, are  regarded  as  fixtures.^  It  must  also  appear  that  the 
place  through  which  the  thief  entered  was  closed ;  for  if  he  en- 
tered through  a  door  or  window  left  open  by  the  carelessness  of 
the  occupant,  it  is  not  burglary.^ 

§  77.  The  offence  of  breaking  the  house  is  also  constructively 
committed,  when  admission  is  obtained  by  threats,  or  by  fraud ; 
as,  if  the  owner  is  compelled  to  open  the  door  by  fear,  or  opens  it 
to  repel  an  attack,  and  thieves  rush  in  ; '  or,  if  they  raise  a  hue 
and  cry,  and  rush  in  when  the  constable  opens  the  door ;  ^  or,  if 
entrance  is  obtained  by  legal  process  fraudulently  obtained ;  ^  or, 
under  pretence  of  taking  lodgings  ;  ^'^  or,  if  lodgings  be  actually 

Breaking  open  a  shutter-box  adjoining  the  loose  planks  in  a  partition  wall,  they  not 

window  was  held  no  burglary.      Hex  v.  being  tixed  to  the  freehold,  has  been  held 

Paine,  7  C.  &  P.  135.  not  a  breaking.     Commonwealth  v.  Trim- 

1  Kex  V.  Hall,  Huss.  &  Ry.  355.  mer,  1  Mass.  476. 

2  Kex  V.  Johnson,  2  East,  P.  C.  488.  *  2  East,  F.  C.  488 ;  1  Hale,  P.  C.  554. 

3  llegina  v.  Wheeldon,  8  C.  &  P.  747  ;  »  Foster,  109  ;  2  East,  P.  C.  489.  This 
Rex  y.  Lawrence,  4  C.  &P.  231.  Whether  point  seems  never  to  have  been  solemnly 
raising  a  trap,  or  flap-door,  which  is  kept  decided.  Wilmot  suggests  as  a  reason 
down  by  its  own  weight,  is  a  sufficient  why  such  a  breaking  should  not  be  burg- 
breaking  of  the  house,  is  a  question  upon  larious,  that,  as  a  general  principle,  the 
which  there  has  been  some  diversity  of  actual  breaking  of  the  dwelling-house  has 
opinion.  See  1  Russ.  on  Crimes,  790 ;  1  reference  to  the  entry  at  common  law,  and 
Hale,  P.  C.  554.  In  Uex  v.  Brown,  2  to  the  escape  of  the  intruder  by  bre:tk- 
East,  P.  C.  487,  in  1790,  Buller,  J.,  held  ing  out  under  the  statute.  Whereas  the 
that  it  was.  In  Rex  v.  Callan,  Russ.  &  breaking  of  a  cupboard  is  a  distinct  and 
Ky.  157,  in  1809,  the  point  was  reserved  independent  act.  This  question  is  fully 
for  the  consideration  of  the  twelve  Judges,  discussed  in  Wilmot,  Dig.  of  the  Law  of 
and  they  were  equally  divided  upon  it.  Burglary,  p.  30-35.  And  see  The  IState 
And  in  1830,  in  Rex  v.  Lawrence,  4  C.  &  v.  Wilson,  Coxe,  439,  441. 

P.  231,  it  was  held  by  BoUand,  B.,  to  be  63  in^t.  64  ;    1    Hale,  P.  C.  551,  552; 

not  sufficient.     In  this  last  case,  that  of  The  State  0.  Wilson,  Coxe,  439 ;    1  Russ. 

Rex  V.   Brown   was  referred  to.     Rex  v.  on  Crimes,  786  ;   Rex  v.  Lewis,  2  C.  &  P. 

Lawrence  seems  to  have  been  overruled  by  628  ;  Rex  v.  Spriggs,  1   M.  &  Rob.  357  ; 

Rex  V.  Russell,  1  Moody,  C.  C.  377,  where  The  State  v.  Boon,  13  Ired.  244. 

it  was  held  that  lifting  up  the  flap  of  a  eel-  '<  2  East,  P.  C.  486.     See  the  State  v. 

lar,   which   was   kept   down    by   its   own  Henry,  9  Ired.  463. 

weight,  is  a  sufficient  breaking,  although  >*  Ibid.  485. 

such  flap  may  have  been  occasionally  fast-  ^  Rex   v.  Farr,  J.    Kelyng,   R.   43  ;   2 

ened  by  nails,  but  was  not  so  fastened  at  East,  P.  C.  485 ;    1  Russ.  on  Crimes,  793. 

the  time  the  entry  was  made.     Removing  w  Ibid. 


68  LAW    OF    EVIDENCE   IN   CRIMINAL   CASES.  [PAET  V. 

taken,  with  an  ultimate  felonious  intent  ;^  or,  if  the  entrance  is  ef- 
fected by  any  other  fraudulent  artifice ;  or,  if  the  house  be  opened 
by  the  servants  within,  by  conspiracy  with  those  who  enter .^ 

§  78.  There  must  be  some  proof  of  actual  entry  into  the  house  ; 
but  it  is  not  always  necessary  to  show  an  entrance  of  the  person ; 
for  if  the  intent  be  to  commit  a  felony  in  the  stealing  of  goods  in. 
the  house,  the  insertion  of  any  instrument  for  that  purpose, 
through  the  broken  aperture,  will  be  sufficient  to  complete  the 
offence.  But  if  the  instrument  were  inserted,  not  for  the  purpose 
of  abstracting  the  goods,  but  for  the  purpose  of  completing  the 
breaking  and  thereby  effecting  an  entrance  to  commit  the  in- 
tended felony,  it  is  not  sufficient.  Thus,  to  break  the  window  or 
door,  and  thrust  in  a  hook  to  steal,  or  weapon  to  rob  or  kill,  is 
burglary,  though  the  hand  of  the  felon  be  not  within  the  house ; 
but  to  thrust  an  auger  through,  in  the  act  of  effecting  an  entrance 
by  boring,  does  not  amount  to  burglary .^  So,  if,  after  breaking 
the  house,  the  thief  sends  in  a  child  of  tender  age  to  bring  out  the 
goods,  he  is  guilty  of  burglary.* 

§  79.  The  building  into  which  the  entry  is  made  must  be 
proved  to  be  a  mansion  or  dwelling-house^  for  the  habitation  of 

1  Ibid.  lary,  would  be  by  laying   the   intent   to 

2  2  East,  P.  C.  486.  And  it  is  burglary  commit  felony  by  killing  or  wounding,  or 
in  both.  Rex  w.  Cornwell,  Id.  2  Stra.  881,  generally,  to  commit  felony;  and  qucere, 
S.  C. ;  1  Russ.  on  Crimes,  794  ;  1  'Gabbett,  whether  the  breaking  and  entry  requisite 
Crim.  Law,  173;  Regina  v.  Johnson,  1  to  complete  the  burglary  would  be  satisfied 
Car.  &  Marshm.  218.     But  if  the  servant  by  such  discharge? 

is  foithful,  and  intended  only  to  entrap  the  *  1  Hale,  P.  C.  555,  556. 

thief,  it  is  not  a  burglarious  entry.     Ibid.  ^  Burglary    may   be    committed    in    a 

■^  2  East,  P.  C.  4'JO ;    Rex  v.  Ilughes,  1  church  at  common  law.    Regina  v.  Baker, 

Leach,  C.  C.  (4th  ed.)  406;  Rex  i-.  Rust,  I  3  Cox,  C.  C.  581  (1849).    "in  this  case, 

Moody,  C.  C.  183.     Whether  the  act  of  Alderson,  B.,  said,  I  take  it  to  be  settled 

discharging  a  bullet  into  the  house,  with  law  that  burglary  may  be  committed  in  a 

intent  to  kill,  is  a  burglarious  entry  into  church,  at  common  law,  and  so  held  lately, 

the  house,  is  doubted.    Lord  Hale  thought  on  circuit.     An  indictment  for  l)urglary  in 

it  was  not.     1  Hale,  P.  C.  555.     Serjeant  a  church  need  not  lay  the  offence  as  com- 

Hawkins  .states  it  as  an  example  of  a  con-  mitted   in    a    dwelling-house  ;    it   should 

structive  entry.      1    Hawk.  P.  C.  ch.  .'iS,  charge  that  the  defendant  feloniously  and 

§  11.     And  Mr.  East  thinks  it  difficult  to  burglariously  broke  and  entered  the  parish 

distinguish  between  this  case  and  that  of  church  of  the  parish  to  which  it  belongs, 

an  instrument  thrust  through  a  window  for  with  intent,  &e.,  according  to  the  circum- 

the  j)urpo.se  of  committing  a  felony,  unless  stance  of  the  case.      2  East,  P.  C.  512; 

it  be  that  the  one  instrument  is  held  in  the  Wilmot,  Dig.  of  the  Law  of  Burglary,  198. 

hand   at   the   time,   and   the  other  is   dis-  In  .some  of  the  United  States,  the  offence 

charged  from  it.     2  East,  P.  C.  490.     See  is  now  punished  by  statute,  which  nuikes 

1    (Jabbi'tt,   Crim.  Law,   174,  175,  where"  it  a  distinct  felony  "to  break  and  enter  any 

this    ditference    is   said    to    be   material,  church   or  chapel,  and  steal  any  chattel 

There  is  ii  distinction    lietwecn    the    two  therein.     But  in  Regina  v.  Baker,  supra, 

ca-ses.     It  is  suiimitted  says  Wilmot  (Dig.  Alderson,  B.,  ruled  that  the  acts  of  Parlia- 

of  Law  of  Burglary,   58),  that  the  oidy  nient  which  particularly  relate  to  offences 

jiossibie  way  in  which  the  discharging  a  resj)ecting  churches,  do  not  destroy  the  of 

loaded   gun   or  ])istol  into  the   dwelling-  fence  at  common  law. 
houst  from  the  outside,  could  be  held  burg- 


PAET  v.]  '  BURGLARY.  69 

man,  and  actually  inhabited,  at  the  time  of  the  offence.  It  is  not 
necessary,  however,  that  the  inhabitants  be  within  the  house  at 
the  moment ;  for  burglary  may  be  committed  while  all  the  family 
are  absent  for  a  night  or  more,  if  it  be  animo  revertendi}  But  if 
the  owner  or  his  family  resort  to  the  house  only  in  the  daytime,  or 
if  he  employ  persons  only  to  sleep  there,  who  are  not  of  his  family 
nor  in  his  domestic  service  and  employment,  though  it  be  to  pro- 
tect the  property  from  thieves,  this  is  not  sufficient  proof  of  hab- 
itancy  by  the  owner.^  Nor  does  habitancy  commence  with  the 
putting  of  furniture  into  the  house,  before  the  actual  residence 
there  of  the  owner  or  his  family .^  Neither  will  the  casual  occu- 
pancy of  a  tenement  as  a  lodging-place  suffice  of  itself  to  consti- 
tute it  a  dwelling-house ;  as,  if  a  servant  be  sent  to  lodge  in  a 
harn^  or  a  porter  to  lodge  in  a  tvarehouse,  for  the  purpose  of  watch- 
ing for  thieves.*  But  the  actual  occupancy  of  the  owner  will  not 
alone  constitute  the  place  his  dwelling-house,  unless  it  is  a  perma- 
nent and  substantial  edifice ;  and  therefore  to  break  open  a  tent  or 
booth,  erected  in  a  fair  or  market,  though  the  owner  sleep  in  it,  is 
not  burglary.^ 

§  80.  The  term  "  mansion,"  or  "  dwelling-house,"  compre- 
hends all  the  outbuildings  which  are  parcel  thereof,  though  they  be 
not  contiguous  to  it.  All  buildings  within  the  same  curtilage  or 
common  fence,  and  used  by  the  same  family,  are  considered  by  the 
law  as  parcel  of  the  mansion.  If  they  are  separated  from  the 
dwelling-house,  and  are  not  within  the  same  common  fence, 
though  occupied  by  the  same  owner,  the  question,  whether  they 
are  parcel  of  the  mansion  or  not,  is  a  question  for  the  Jury,  upon 
the  evidence.^     And  here  it  becomes  material  to  inquire  whether 

1  Hale,  p.  C.  556  ;  4  Bl.  Comm.  225 ;  *  Rex  v.  Smith,  2  East,  P.  C.  497  ;  Rex 
1  Gabbett,  Grim.  Law,  181,  182  ;  [Gom-  v.  Brown,  Id.  493,  497,  501. 
monwealth  v.  Barney,  10  Gush.  479.]  ^  1  Hale,  P.  G.  557  ;  4  Bl.  Gomm.  226. 
Breaking  a  house  in  town,  which  was  shut  ^  1  Hale,  P.  G.  558,  569  ;  .3  Inst.  64  ;  1 
up,  while  the  family  were  spending  the  Hawk.  P.  G.  ch.  38,  §  21-25;  1  Gabbett, 
summer  in  the  country,  has  been  held  Grim.  Law,  178  ;  2  East,  P.  C.  492-495 ; 
burglary.  Commonwealth  v.  Brown,  3  Devoe  v.  The  Gommonwealth,  3  Met.  325  ; 
Rawle,  207.  1   Russ.  on   Grimes,  800-802;    Parker's 

2  Ibid.  ;  2  East,  P.  G.  497,  498,  499  ;  case,  4  Johns.  424  ;  The  State  v.  Ginns,  1 
Rex  V.  Flannagan,  Russ.  &  Rv.  187;  Nott  &  M'G.  583  ;  The  State  y.  Langford, 
Rex  V.  Lyons,  1  Leach,  G.  G.  (4th  ed.)  1  Dev.  253;  The  State  y.  Wilson,  1  Hayw. 
185  ;  Rex  v.  Fuller,  Id.  222,  n. ;  -1  Russ.  242  ;  The  State  v.  Twitty,  lb.  102  ;  Rex  v. 
on  Crimes,  797-800.  Westwood,    Russ.    &    Ry.    495;     Rex    v. 

3  Rex  V.  Lyons,  1  Leach,  G.  C.  (4th  Chalking,  lb.  334.  Thus,  an  out-house, 
ed.)  185;  2  East,  P.  C.  497,  498  ;  Rex  v.  within  an  enclosed  yard,  had  been  held 
Thompson,  1  Leach,  G.  C.  (4th  ed. )  771  :  part  of  the  dwelling-house  of  the  occupy- 
1  Gabbett,  Grim.  Law,  480.  But  see  ing  owner,  though  he  has  another  tene- 
contra  Commonwealth  v.  Brown,  3  Rawle,  ment  opening  into  the  same  yai-d,  in  the 
207.  occupancy  of  a  tenant  having  an   ease- 


70  LAW   OF    EVIDENCE  IN   CRIMINAL    CASES.  [PART  V. 

the  apartment  or  building  wliich  was  broken  had  a  separate  door 
of  entrance  of  its  own,  or  was  approachable  only  through  the  com- 
mon door  of  the  dwelling-house.  For  if  the  owner  of  a  dwelling- 
house  should  let  part  of  it  for  a  shop,  and  the  tenant  should 
occupy  it  for  his  trade  only,  without  sleeping  there,  and  it  should 
have  a  door  of  its  own,  distinct  from  that  of  the  dwelling-house  ; 
here,  though  it  be  under  the  roof  of  the  mansion,  yet  it  is  not  a 
place  in  which  burglary  can  be  committed.^  But  if  there  is  only 
one  common  door  of  entrance  to  both,  it  is  still  part  of  the  dwelling- 
house  of  the  owner  of  the  mansion.^ 

§  81.  And  in  regard  to  the  oivnersliip  of  the  dwelling-house,  if 
the  general  owner  of  the  mansion,  in  which  he  resides,  should  let 
a  room  in  it  to  a  lodger,  who  enters  only  by  the  common  door,  and 
his  apartment  is  feloniously  broken  and  entered,  it  is  burglary  in 
the  house  of  the  general  owner.^  But  if  the  lodger's  room  has  a 
separate  outer  entrance  of  its  own,  and  no  other,  the  room  is  the 
house  of  the  lodger.*  And  where  rooms  in  a  house  are  let  to  sev- 
eral tenants,  who  enter  by  a  common  hall  door  ;  if  the  general 
owner  does  not  inhabit  the  house,  then  each  apartment  is  the  sepa- 
rate dwelling-house  of  its  own  tenant.  Such  is  the  case  of  cham- 
bers in  the  Inns  of  Court,  rooms  in  Colleges,  and  the  like.^  If  two 
have  the  title  to  two  contiguous  dwelling-houses,  in  common,  pay- 
ment there.  Rex  v.  Walters,  Ry.  &  M.  13.  "-  Rex  v.  Gibson,  1  Leach,  C.  C.  (4th 
So,  a  permanent  building,  used  and  slept  ed.)  357;  2  East,  P.  C.  507,  508.  In  the 
in  only  durinu-  a  fair.  Rex.  v.  Smith,  1  M.  case  of  a  large  manufixctory  in  the  centre 
&  Rob.  256.  So,  a  house  occupied  only  of  a  pile  of  buildings,  the  wings  of  which 
by  tlie  servants  of  the  owner,  the  burglary  were  inhabited,  but  without  any  communi- 
being  in  his  shop  adjoining,  and  communi"-  cation  with  the  manufactory  in  the  centre, 
eating  with  the  house  by  a  trap-door  and  it  was  held,  that  burglary  could  not  be 
ladder.  Rex  v.  Stock,  Russ.  &  Hy.  185;  committed  in  the  latter  place,  though  the 
2  Taunt.  339,  S.  C.  So,  a  building  within  whole  pile  was  enclosed  within  a  common 
the  same  enclosure,  used  with  the  dwell-  fence.  Rex  v.  Eggington,  2  East,  V.  C. 
in<'--house,  but  accessible  onlv  by  an  ojjcn  494.  [*  In  People  v.  Snyder,  2  Parker, 
passage.  Hex  v.  Hancock,  Huss.  &  Ry.  C.  R.  (N.  Y.)  23,  it  was  held  that  burglary 
170.  Though  no  person  sleejjs  in  such  may  be  committed  in  a  sliop  whicli  is 
building.  Rex  v.  (iib.son,  2  East,  P.  C.  under  the  same  roof  with,  and  nearly  sur- 
508.  Apartments  let  to  lodgers,  as  ten-  rounded  by,  rooms  occupied  hy  the  family, 
ants,  are  the  dwelling-houses  of  the  lodg-  thougii  tliere  be  no  communication  from 
crs,  if  the  owner  do  not  dwell  in  the  same  the  latter  to  the  former,  without  going  out 
house,  or  if  the  lodger  has  a  separate  en-     of  doors.] 

trance  for  himself,  from  the  street  ;    but  if  ^  1  Hale,  P.  C.  556  ;  4  Bl.  Comm.  225  ; 

the  owner,  by  himself  or  his  servants,  oc-     2  East,  P.  C.  499,  500;    Lee  v.  Gansell, 
cupics  a  part  of  the  same  house,  the  whole     Cowp.  8  ;  J.  Kel.  84. 
is   his  dwelling-house.     Rex   v.    Gibbons,         *  Ibid.;  1  Ru.ss.  on  Crimes,  800-803. 
Russ.  &  My.  422  ;  Rex.  v.  Carrell,  2  Eiast,         ^  Ibid. ;    2  East,  P.  C.    505  ;   Evans  v. 
V.  C.  506  ;'  Rex  r.  Turner,  lb.  492 ;    Rex     Findi,  Cro.  Car.  473  ;    Rex  v.  Rogers,  I 
V.  Martin,  Russ.  &  Ry.  108.  Leach,  C.  C.  (4th  ed.)  89  ;    2  Hale,  P.  C. 

»  1  Hale,  P.  C.  557,  558  ;  4  Bl.  Comm.  358  ;  [People  v.  Bu.sh,  3  Parker,  C.  R. 
225  ;  J.  Kelyng,  83,  84.  (But  see  People  552.]  [*  Mason  v.  People,  26  N.  Y.  200.] 
V.  Snyder,  2  Parker,  C.  R.  23.] 


PART  v.]  BURGLARY.  71 

ing  rent  and  taxes  for  both  out  of  their  common  fund,  yet  if  their 
dwellings  be  separately  inhabited,  and  one  be  feloniously  broken 
and  entered,  it  is  burglary  in  the  dwelling-house  of  the  occupant 
of  that  one  only,  and  not  of  both  ;  but  if  in  such  case  the  occu- 
pancy also  is  joint,  the  entrance  for  both  families  being  by  the 
same  common  door,  it  is  the  dwelling-house  of  both.^  In  all  these 
cases,  the  offence  must  be  laid  accordingly,  or  the  variance  will  be 
fatal. 

§  82.  The  felonious  intent,  charged  in  the  indictment,  is  suffi- 
ciently proved  by  evidence  of  a  felony  actually  committed  in  the 
house  ;  it  being  presumed  that  the  act  was  done  pursuant  to  a 
previous  intention.^  If  none  was  committed,  then  the  intent  to 
commit  the  felony  charged  must  be  distinctly  proved.  And  it  is 
not  necessary  that  it  be  a  felony  at  common  law  ;  for  if  the  act 
has  been  created  a  felony  by  statute,  it  is  sufficient.^ 

§  83.  The  time  of  the  breaking  may  be  inferred  by  the  Jury 
from  the  circumstances  of  the  case  ;  as,  for  example,  if  the  goods 
stolen  were  seen  in  the  house  after  dark,  and  at  daylight  in  the 
morning  were  missing.*  And  the  fact  of  breaking  a  dosed  door 
may  also  be  inferred  from  evidence  that  it  was  found  open  in  the 
morning,  and  that  marks  of  violent  forcing  were  found  upon  it.^ 

1  Rex  V.  Jones,  2  Leach,  P.  C.  (4th  ed.)  the  house,  and  took  the  money  which  he 
537  ;  2  East,  P.  C.  504.  had  concealed.     This  was  holden  to  be  no 

2  1  Hale,  P.  C.  560.  But  the  actual  burglary,  because  the  first  taking  of  the 
commission  of  felony  in  the  house,  says  money  was  not  felony,  but  only  a  breach 
Wilmot,  Dig.  of  the  Law  of  Burglary,  p.  of  trust.  "  Although  the  money  was  the 
1 1 ,  is  not  conclusive  proof  that  the  entry  master's  in  right,  it  was  the  servant's 
was  made  with  intent  to  commit  that  fel-  money  in  possession."  The  subsequent 
ony.  Murder  might  ensue,  where  there  entry,  therefore,  was  only  a  trespass.  2 
existed  only  the  intent  to  steal ;  or  a  per-  East,  P.  C.  510 ;  1  Kuss.  by  Greaves,  823  ; 
son  might  open  a  door  and  enter  to  com-  1  Shower,  53.  [*  The  intent  with  which 
mit  a  trespass,  or  to  recover  his  own  prop-  one  charged  with  burglary  entered  one 
crty,  and  afterwards,  on  an  opportunity  store  may  be  shown  by  proof  tending  to 
offered,  commit  larceny.  In  the  first  in-  show  a  felony,  committed  by  him,  at  the 
stance,  however,  he  who  should  commit  same  time,  in  an  adjoining  store.  Osborne 
murder,  would  not  be  excused  on  account  v.  People,  2  Parker,  C.  R.  (N.  Y.)  583.] 
of  an  entry  with  no  such  intention  ;  for,  as  ^  2  East,  C.  C.  511  ;  "Wilmot,. Dig.  of 
East  says,  "It  is  a  general  rule,  that  a  the  Law  of  Burglary,  15.  [*  In  New 
man  who  commits  one  sort  of  felony,  in  York,  it  is  not  necessary  to  specify  iu 
attempting  to  commit  another,  cannot  ex-  the  indictment  what  kind  of  felony  was 
cuse  himself  upon  the  ground  that  he  did  intended.  Mason  v.  People,  26  N.  Y.  Ct. 
not  intend  the  commission  of  that  particu-  Ap.  200.] 

lar  offence."      A   servant,   who   was   in-  *  The  State  v.  Bancroft,  10  N.  Hamp. 

trusted  by  his  master,  sold  goods,  and  con-  105. 

cealed  the  money  in  the  house  ;    and  after  ^  Commonwealth  v.  Merrill,  Thacher's 

he  was  discharged  from  the  seiwice,  broke  Crim.  Cases,  1. 


72  LAW  OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 


CHEATING. 

^*  §  84.   Offence  must  affect  public  at  large  and  be  one  against  which  common  pru 
dence  is  not  sufficient  to  guard. 

85.  Selling  unwholesome  food  an  illusti'ation. 

86.  Cheating  by  using  false  weights  or  measures  indictable  at  common  law. 

87.  Manner  of  cheating  must  be  alleged  and  proved. 

88.  Person  to  be  defrauded  must  be  proved,  and  accomplishment  of  design.] 

§  84.  The  indictment  for  this  offence,  at  common  law,  must 
show,  and  of  course  the  prosecutor  must  prove,  first,  that  the  of- 
fence was  of  a  nature  to  affect  not  only  particular  individuals,  but 
the  public  at  large,  and  against  tvliich  common  prudence  and  care  are 
not  sufficient  to  guard}  Hence  it  was  held  indictable  for  common 
players  to  cheat  with  false  dice  ;  ^  and  for  a  person  to  pretend  to 
have  power  to  discharge  soldiers,  thereupon  taking  money  from 
them  for  false  discharges.^  So,  obtaining  an  order  from  the  court 
to  hold  to  bail,  by  means  of  a  false  voucher  of  a  fact,  fraudulently 
produced  for  that  purpose  ;  *  furnishing  adulterated  bread  to  the 
government,  for  the  use  of  a  military  asylum  ;  ^  and  selling  army- 
bread  to  the  government,  by  false  marks  of  the  weight,  fraudu- 
lently put  on  the  barrels  ;  ^  have  been  held  indictable  offences  at 
common  law.  On  the  other  hand,  it  has  been  held  not  indictable 
for  a  man  to  violate  his  contract,  however  fraudulently  it  be 
broken  ; ''  or,  to  obtain  goods  by  false  verbal  representations  of  his 
credit  in  society  and  his  ability  to  pay  for  them  ;  ^  or,  tortiously  to 
retain  possession  of  a  chattel ;  ^  or,  tortiously  to  obtain  possession 

^  This  was  stated  by  Lord  Mansfield  as  ^  Leeser's  case,  Cro.  Jac.  497. 

indispensably  necessary  to  render  the  of-  ^  Scrlcsted's  case,  Latcli,  202. 

fence  in<lictal)le.     Sec  ke.x  v.  Wheatlev,  2  *  Per  Lord  Ellenborough,  in  Omcaly  v. 

Burr.  1125;    1   Leading    Criin.  Cascs,"^  1;  Newell,  8  East,  3G4,  372.     [And  see  Ro- 

cited  with  aj)prol)ation  by  Lord  Kenyon,  gina  v.  Evans,  1  Dears.  &  Bell,  236.] 

as  cstablisliiiig    the    true  bounds  between  •     °  Hex  v.  Dixon,  3  M.  &  S.  14. 

frauds  which  are  and  are  not  indictable  at  ^  Respublica  v.  Powell,  I  Dall.  47. 

common  law,  in  Hex  v.  Lara,  6  T.  11.  565.  "  Conunonwealth  v.   Ilearsey,   1  Mass. 

And  see  2  Ohitty,  Oim.  Law,  0'.)4 ;   Cross  137. 

V.  Peters,  1  Green!.  387,  jur  Mellen,  C.  -J. ;  **  Commonwealth  v.  Warren,  0  Mass.  72. 

The  People  v.  Stone,  9  Wend.   182  ;    The  »  The  People  v.  Miller,   14  Joluis.  371. 
State  V.  Justice,  2  Dcv.  199;  The  State  v. 
Stroll,  1  Kich.  244. 


PART  v.]  CHEATING.  78 

of  a  receipt ;  ^  or  of  lottery-tickets,  by  pretending  to  pay  for  them 
by  drawing  his  check  on  a  banker  with  whom  he  had  no  funds  ;  ^ 
or,  to  receive  good  barley  from  an  individual  to  grind,  and  instead 
thereof  to  return  a  musty  mixture  of  barley  and  oatmeal ;  ^  or, 
fraudulently  to  deliver  a  less  quantity  of  beer  than  was  contracted 
for  and  represented  ;  *  or,  fraudulently  to  obtain  goods  on  promise 
to  send  the  money  for  them  by  the  servant  who  should  bring 
them  ;  ^  or,  to  borrow  money  or  obtain  goods  in  another's  name, 
falsely  pretending  to  have  been  sent  by  him  for  that  purpose  ;  ^  or, 
falsely  and  fraudulently  to  warrant  the  soundness  of  a  horse,  or 
the  title  to  land.'' 

§  85.  Under  this  head  may  be  ranked  the  offence  of  selling  un- 
wholesome food,  which  was  indictable  by  the  common  law,  and  by 
the  statute  of  51  Hen.  3,  st.  6.^  In  such  case,  it  is  not  material 
whether  the  offence  be  committed  from  malice  or  the  desire  of 
gain  ;  nor  whether  the  offender  be  a  public  contractor  or  not,  or 
the  injury  be  done  to  the  public  service  or  not ;  nor  that  he  acted 
in  violation  of  any  duty  imposed  by  his  peculiar  situation  ;  nor 
that  he  intended  to  injure  the  health  of  the  particular  individual 
for  whose  use  the  noxious  articles  were  sold  ;  the  essence  of  the 
offence  consisting  in  doing  an  act,  the  probable  consequences  of 
which  are  injurious  to  the  health  of  man.^ 

1  The  People  v.  Babcock,  7  Johns.  201.  took  a  regular  assignment  of  it,  with  the 

2  Rex  V.  Lara,  6  T.  R.  56.5.  But  see  usual  covenants  for  title,  Littledale,  J., 
contra,  Rex  v.  Jackson,  3  Campb.  370.  held,  that  he  could  not  be  convicted  for 
[This  case  was  decided  under  Stat.  30,  obtaining  money  by  false  pretences;  for  if 
Geo.  2,  against  false  pretences,  and  con-  this  were  within  the  statute,  every  breach 
firms  ratlier  than  opposes  Rex  v.  Lara,  of  warranty  or  false  assertion  at  the  time 
See  Rex  v.  Wheatlv,  1  Leading  Crim.  Ca-  of  a  bargain  might  be  treated  as  such,  and 
ses  12.]  "  the  party  be  transported.  Rex  v.  Cod- 
s' Rex  V.  Havnes,  4  M.  &  S.  214.  rington,  1  C.  &  P.  661.  But  in  Regina  v 
*  Rex   V.    Wheatly,   2   Burr.    1125;    1  Kenrick,  5  Q.  B.  49 ;  Dav.  &  M.  208,  that 

Leading  Crim.  Cases,  1.  decision  was  much  questioned;  and  it  was 

5  Rex  V.  Goodhall,  Russ.  &  Ry.  461.  strongly  intimated,  that  the  execution  of  a 
And  in  Hartmann  v.  The  Commonwealth,     contract  between  the  same  parties  does  not 

5  Barr,  60,  it  was  held,  that  obtaining  a  secure  from  punishment  the  obtaining  of 
false  credit  otherwise  than  by  false  tokens,  money  under  false  pretences,  in  conformity 
or  the  removal  and  secreting  of  goods  with  with  that  contract.  And  in  Regina  v.  Ab- 
intent  to  defraud  creditors,  are  not  indict-  bott,  1  Denison,  C.  C.  173  ;  2  O.  &  K.  630, 
able  at  common  law.  it  was  decided  unanimously  by  the  Judges, 

6  Regina  v.  Jones,  1  Salk.  379  ;  Rex  v.  upon  a  case  reserved,  that  the  law  was  so. 
Bryan, "2  Stra.  866.  [A  false  statement,  that  a  party  has  a  cer- 

7  Rex  t'.  Pywell,  4  Stark.  R.  402.  See  tain  amount  "due  and  owing  to  him,"  is 
also  Weierbach  v.  Trone,  2  Watts  &  Serg.  not  a  false  representation  on  which  an  in- 
408.  See  Regina  v.  Rowlands,  2  Denison,  dictment  can  be  maintained.  Regina  v. 
C.  C.  364  ;  5  Cox,  C.  C.  481  ;  9  Eng.  Law  Gates,  25  Law  &  Eq.  R.  552.] 

6  Eq.  Rep.  291 ;  Regina  v.  Kenrick,  5  Q.         M  Bl.  Comm.  162  ;  2  East,  P.  C.  822. 
B.   62 ;    Infra,  tit.    Conspiracy,   §   90  a.         ^  Ibid.  ;  2  Chitty,  Crim.  Law,  557,  n. ; 
Where  the  prisoner  sold  to  the  prosecutor  3  M.  &  S.  16,  Per  Ld.  Ellenborough ;  Rex 
a  reversionary  interest  whicli  he  had  pre-  v.  Treeve,  2  East,  P.  C.  821 ;  1  Russ.  on 
viously  sold  to  another,  and  the  prosecutor  Crimes,  109. 


74  LAW   OF   EVIDENCE   IN   CED.IINAL   CASES.  [PART  V. 

§  86.  To  cheat  a  man  of  his  money  or  goods,  by  using  false 
weights  or  false  measures,  has  been  indictable  at  common  law  from 
time  immemorial.  In  addition  to  this,  cheating  by  false  "  privy 
tokens  and  counterfeit  letters  in  other  men's  names,"  was  made 
indictable  by  the  statute  of  33  Hen.  8,  ch.  1,  which  has  been 
adopted  and  acted  upon  as  common  law  in  some  of  the  United 
States,  and  its  provisions  are  believed  to  have  been  either  recog- 
nized as  common  law,  or  expressly  enacted,  in  them  all.^  Under 
this  statute  it  has  been  held,  that  the  fraud  must  have  been  perpe- 
trated by  means  of  some  token  or  thing  visible  and  real,  such  as  a 
ring  or  key,  or  the  like  ;  a  verbal  representation  not  being  suffi- 
cient ;  or  else  by  means  of  a  writing,  either  in  the  name  of  anoth- 
er, or  so  framed  as  to  afford  more  credit  than  the  mere  assertion 
of  the  party  defrauding.^ 

§  87.  In  the  second  place,  the  indictment  must  show,  and  the 
prosecutor  must  prove,  the  manner  in  which  the  cheating  was  effect- 
ed ;  as,  for  example,  if  it  were  by  a  false  token,  the  particular  kind 
of  token  must  be  specified  ;  ^  but  if  several  tokens  or  means  are 
described,  it  will  be  sufficient  if  any  one  of  them  be  proved.* 

§  88.  In  the  third  place,  it  is  material  to  specify  and  prove  the 
'person  intended  to  be  defrauded  ;  and  that  the  design  was  success- 
fully accomplished,  at  least  so  far  as  to  expose  the  person  to  the 
danger  of  loss.^ 

1  Commonwealth  v.  Warren,   6  Mass.  v.  Williams,  4  Hill  (N.  Y.),  R.  9;    The 

72;   The   People   v.   Johnson,    12  Johns.  State  v.  Mills,  17  Maine,  211  ;    Common- 

292.  wealth  v.  Wilmis,  4  Pick.  177;    Common- 

-  2  East,  P.  C.  689;    3  Chitty,    Crim.  wealth  i;.  Drew,  19  Pick.  179;    Common- 
Law,  997  ;  Hex  v.  Wilders,  cited  in  2  Burr,  wealth  v.  Call,  21  Pick.  515  ;  The  People 
1128'    I'cr  Ld.  Manffield.     The  statute  of  v.  Galloway,  17  Wend.  540. 
30  Geo.  2,  ch.  24,  was  enacted  to  supply  *  Rex  v.  Mason,  1  T.  R.  581 ;   2  East, 
the  dettciencv  of  the  existini^  law  ajjainst  P.  C.  837. 

cheating:  hv"renderin,u-  it  an  indictable  of-  *  Rex  v.  Dale,  7  C.  &  P.  352;   Rex  v. 

fence  to  clieat   another  of  his   money  or  Story,  1  Russ.    &  Ry.  80 ;    The  State  v. 

goods,    by   uiiii  false  pretences    tvliatso'ever.  Duiilap,  24  Maine,  77  ;^  The  State  v.  Mills, 

Similar   statutes    have    been    enacted   in  17  Maine,  211  ;    14  Wend.  547,  per  Wal- 

many  of  tlic  United  States ;  but  they  are  worth,  Ch. ;   Rex  v.  Perrott,  2  M.  &  S. 

generallv  construed  to  extend  only  to  such  379. 

pretences  as  are  calculated  to  mislead  per-  "  The  State  v.  Woodson,  5  Humph.  55 ; 

sons  of  ordinary    prudence   and  caution.  The    People    r.    Genunj:,    11    Wend.    18; 

Sec  Rex  V.  Youn^',  3  T.  R.  98;    Rex  v.  Commonwealth  i^.  Wilyus,  4  Pick.  177. 
Goodhall,  1  Russ.  &  Kv.  461  ;  The  People 


PART  v.] 


CONSPIRACY. 


75 


CONSPIRACY. 


[*  §  89.    Conspiracy  defined. 

90.  Objects  of,  divided  into  five  classes. 

90  n.   Definition  of,  deduced  from  late  cases. 

91.  Unlawful  agreement  and  combination  essence  of  offence. 

92.  Order  of  putting  in  testimony. 

93.  Evidence  generally  circumstantial. 

94.  Acta,  and  declarations  of  other  conspirators,  how  far  admissible  as  part  of  the 

res  gestce. 

95.  Where  the  act  to  be  done  is  unlawful,  means  intended  to  be  employed  need  not 

be  alleged. 

96.  Evidence  confined  to  particular  allegations  in  indictment. 

97.  Where  two  are  indicted  and  one  acquitted  the  other  must  be  acquitted. 

98.  Wife  of  one  conspirator  cannot  be  a  witness  for  other  conspirators. 

99.  Correspondence  between  defendants  sometimes  read  in  defence  of  one.] 

§  89.  A  CONSPIRACY  may  be  described,  in  general  terms,  as  a 
combination  of  two  or  more  persons,  by  some  concerted  action,  to 
accomplish  some  criminal  or  unlawful  purpose  ;  or  to  accomplish 
some  purpose,  not  in  itself  criminal  or  unlawful,  by  criminal  or 
unlawful  means.i     It  is  not  essential  that  the  act  intended  to  be 


1  The  books  contain  much  discussion  on 
the  n;\tui-e  and  definition  of  this  offence ; 
but  this  description  being  one  of  the  most 
recent,  and  given  upon  great  consideration, 
is  deemed  sufficient.  Sec  Commonwealth 
V.  Hunt,  4  Met.  111.  The  learned  Cliief 
Justice,  in  delivering  the  judgment  in  that 
case,  expounded  what  may  be  regarded  as 
the  general  doctrine  of  American  law  on 
this  subject,  as  follows :  "  We  have  no 
doubt,  that  by  the  operation  of  the  consti- 
tution of  this  Commonwealth,  the  general 
rules  of  the  common  law,  making  con- 
spiracy an  indictable  offence,  are  in  force 
here,  and  that  this  is  included  in  the  de- 
scription of  laws  which  hud,  before  the 
adoption  of  the  constitution,  been  used  and 
approved  in  the  Province,  (Colony,  or  State 
of  Massachusetts  Bay,  and  usually  prac- 
tised in  the  courts  of  law.  Const,  of  Mass. 
c.  vi.  §  6.  It  was  so  held  in  Common- 
wealth V.  Boynton,  and  Commonwealth  u. 
Pierpont,  cases  decided  before  reports  of 
cases  were  regularly  published,*  and  in 

*  See  a  statement  of  these  cases,  in  3  Law 
Reporter,  295,  296. 


many  cases  since.  Commonwealth  v. 
Ward,  1  Mass.  473 ;  Commonwealth  v. 
Judd,  and  Commonwealth  v.  Tiljbetts,  2 
Mass.  329,  536;  Commonwealth  v.  War- 
ren, 6  Mass.  74.  Still,  it  is  proper  in  this 
connection  to  remark,  that  although  the 
common  law  in  regard  to  conspiracy  in 
this  Commonwealth  is  in  force,  yet  it  will 
not  necessarily  follow  that  every  indict- 
ment at  common  law  for  this  offence  is  a 
precedent  for  a  similar  indictment  in  this 
State.  The  general  rule  of  the  common 
law  is,  that  it  is  a  criminal  and  indictable 
offence  for  two  or  more  to  confederate  and 
combine  together  by  concerted  means  to 
do  that  which  is  unlawful,  or  criminal,  to 
the  injury  of  the  public,  or  portions  or 
classes  of  the  community,  or  even  to  the 
rights  of  an  individual.  This  rule  of  law 
may  be  equally  in  force  as  a  rule  of  the 
common  law  in  England  and  in  this  Com- 
monwealth ;  and  yet  it  must  depend  upon 
the  local  laws  of  each  country  to  deter- 
mine, whether  the  purpose  to  be  accom- 
plished by  the  combination,  or  the  con- 
certed means  of  accomplishing  it,  be  un- 
lawful or  criminal  in  the  respective  coua- 


76 


LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


done  should  be  punishable  by  indictment ;  for  if  it  be  designed  to 
destroy  a  man's  reputation  by  verbal  slander,^  or  to  seduce  a  fe- 
male to  elope  from  her  parents'  house  for  the  purpose  of  prostitu- 
tion, the  conspiracy  is  a  criminal  offence,  though  the  act  itself  be 
not  indictable.^ 

§  90.  The  objects  of  this  crime,  though  numerous  and  multi- 
form, may  be  classified  as  follows  :  —  1st.  To  perpetrate  an  offence 
which  is  already/  punishable  by  law ;  as,  for  example,  to  commit  a 
murder  or  other  felony,  or  a  misdemeanor,  such  as  to  vilify  the 
government  and  embarrass  its  operations  ;  or  to  sell  lottery-tickets 


tries.  All  those  laws  of  the  parent  coun- 
try, whetlier  rules  of  the  common  law,  or 
early  English  statutes,  which  were  made 
for  the  ])urpose  of  regulating  the  wages  of 
laborers,  the  settlement  of  paupers,  and 
making  it  penal  for  anj'  one  to  use  a  trade 
or  handicraft  to  wliich  he  had  not  served  a 
full  apprenticeship,  —  not  being  ad^ipted  to 
the  circumstances  of  our  colonial  condi- 
tion,—  were  not  adopted,  used,  or  ap- 
proved, and  therefore  do  not  come  within 
the  description  of  the  laws  adopted  and 
confirmed  by  the  provision  of  the  constitu- 
tion already  cited.  This  consideration 
will  do  something  towards  reconciling  the 
English  and  American  cases,  and  may  in- 
dicate how  far  the  principles  of  the  Eng- 
lish cases  will  apply  in  this  Common- 
wealth, and  siiow  why  a  conviction  in 
England,  in  many  cases,  would  not  be  a 
precedent  for  a  like  conviction  here.  The 
King  V.  Journeyman  Tailors  of  Cam- 
bridge, 8  Mod.  10,  for  instance,  is  com- 
monly cited  as  an  autliority  for  an  indict- 
ment at  common  law,  and  a  conviction  of 
journeyman  mechanics  of  a  conspiracy  to 
raise  their  wages.  It  was  there  held,  that 
the  indictment  need  not  conclude  contra 
formaiii  slaluti,  because  the  gist  of  the  of- 
fence was  the  conspiracy,  which  was  an 
offence  at  common  law.  At  the  same  time 
it  was  conceded,  that  the  unlawful  object 
to  be  accomplished,  was  the  raising  of 
wages  above  tlie  rate  fixed  by  a  general 
act  of  parliiunent.  It  was  therefore  a  con- 
spiracy to  viohite  a  general  statute  law, 
made  for  tlie  rcguhition  of  a  large  branch 
of  trade,  affecting  the  comfort  and  interest 
of  the  public;  and  thus  the  object  to  be 
ficconiplishcd  by  the  conspiracy  was  im- 
lawfid,  if  not  criminal."  "  But  the  great 
ditliculty  is,  in  frauiing  any  definition  or 
description,  to  be  drawn  from  the  decided 
cases,  wiiich  shall  specifically  identify  this 
offence,  —  a  description  broad  enough  to 
include  all  cases  punishable  under  this  de- 
6cri{)tiou,  without  ineluding  acts  which  are 
not  punishable.     Without   attempting  to 


review  and  reconcile  all  the  cases,  we  are 
of  opinion,  that  as  a  general  description, 
though  perhaps  not  a  precise  and  accurate 
definition,  a  conspiracy  must  be  a  combi- 
nation of  two  or  more  persons,  by  some 
concerted  action,  to  accomplish  some  crim- 
inal or  unlawful  purpose,  or  to  accomplish 
some  purpose,  not  in  itself  criminal  or 
unlawful,  by  ci-iminal  or  unlawful  means. 
We  use  the  terms  criminal  or  unlawful, 
because  it  is  manifest  that  many  acts  are 
unlawful  which  are  not  punishaljle  by  in- 
dictment or  other  public  prosecution  ;  and 
yet  there  is  no  doubt,  we  think,  that  a 
combination  ])y  numbers  to  do  them  would 
be  an  unlawful  conspiracy,  and  punishable 
by  indictment."  See  4  Met.  121-123. 
And  see  The  People  v.  Mather,  4  Wend. 
229,  259;  The  State  v.  Kowley,  12  Conn. 
101  ;  Commonwealth  v.  Carlisle,  1  Journ. 
Jurisp.  225,  per  (jibson,  J. ;  Kegina  v. 
Vincent,  9  C.  &  P.  91,  per  Alderson,  B. ; 
Rex  V.  Seward,  1  Ad.  &  El.  71.3,  per  Ld. 
Denman.  As  to  conspiracies  to  obtain 
goods  under  jjretence  of  buying  them,  in 
fraud  of  the  vendor,  and  the  mode  of 
charging  this  offence,  see  Commonwealth 
V.  Eastman,  1  Cush.  189  ;  1  Leading  Cases, 
264,  and  note;  Commonwealth  r.  Shedd, 
7  Cush.  514;  The  State  v.  Hoberts,  34 
Maine,  .'320;  The  State  v.  Hewett,  31  Id. 
396 ;  The  State  v.  Ripley,  Id.  386  ;  Hart- 
mann  v.  The  Commonwealth.  5  Carr.  60. 

i  4  Met.  123,  per  Shaw,  C.  J.;  Rex  v. 
Armstrong,  1  Vent.  304. 

2  Rex  V.  Delaval,3  Burr.  14.34;  1  Lead- 
ing Crim.  Cases,  457  ;  Regina  v.  Mcars, 
15  Jur.  56  ;  1  Leading  Crim.  Cases,  462  ;  4 
Cox,  C.  C.  423;  2  Denison,  C.  C.  79; 
Temple  v.  Mew,  C.  C.  414;  1  Eng.  Law 
and  K(i.  R.  5S1  ;  Rex  v.  Ld.  Grcv,  1  East, 
P.  C.  460;  MilHin  r.  The  Commonwealth, 
5  W.  &  Serg.  561  ;  Anderson  r.  The 
Commonwealth,  5  Rand,  627  ;  Respublica 
V.  Hevice,  2  Yeatcs,  114;  The  State  v. 
Murphy,  6  Ala.  7(;5 ;  [The  State  v.  Nor- 
ton, 3  Zabriskie,  33.] 


PART  v.]  CONSPIRACY.  77 

when  forbidden  by  law  ;  and  the  like.^  And  here  it  may  be  ob- 
served, that  where  the  conspiracy  to  commit  a  felony  is  carried 
into  effect,  the  crime  of  conspiracy,  which  is  a  misdemeanor,  is 
merged  in  the  higher  offence  of  felony  ;  but  that  if  the  object  of 
the  conspiracy  be  to  commit  a  misdemeanor  only,  and  it  be  com- 
mitted, the  offence  of  conspiracy  is  not  merged,  but  is  still  sepa- 
rately punishable.^  2dly.  To  injure  a  third  person  by  charging 
him  with  a  crime,  or  with  any  other  act  tending  to  disgrace  and  in- 
jure him,  or  with  intent  to  extort  money  from  him  by  putting  him 
in  fear  of  disgrace  or  harm  ;  or  by  defrauding  him  of  his  property, 
or  ruining  his  reputation,  trade,  or  profession.  Of  this  class  are  con- 
spiracies to  indict  a  man  of  a  crime,  in  order  to  extort  money  from 
him  ;  ^  or  falsely  to  charge  a  man  with  the  paternity  of  a  bastard 
child  ;  *  or  with  fraudulently  abstracting  goods  from  a  bale  ;  ^  or, 
to  make  him  drunk  in  order  to  cheat  him  ;  ^  or,  to  impose  inferior 
goods  upon  another,  as  and  for  goods  of  another  and  better  kind, 
in  exchange  for  goods  of  his  own  ;  ^  or,  to  impoverish  a  man  by 
preventing  him  from  working  at  his  trade  ;  ^  or,  to  defraud  a  cor- 
poration.^ But  it  is  said,  that  if  the  act  to  be  done  is  merely  a 
civil  trespass,  such  as  to  poach  for  game,^"^  or,  to  sell  an  unsound 
horse  with  a  false  warranty  of  soundness,^i  an  indictment  will  not 
lie.  3dly.  To  do  an  act  tending  to  obstruct,  pervert,  or  defeat  the 
course  of  public  justice.  Hence  it  is  an  indictable  offence  to  con- 
spire to  obtain  from  magistrates  a  false  certificate  that  a  highway 
is  in  good  repair,  in  order  to  influence  the  judgment  to  be  pro- 
nounced against  the  parish  for  not  repairing  ;  ^^  or,  to  dissuade  a 

1  Commonwealth  v.  Crowninshield,  10  pretences.  If  the  parties  conspire  to  ob- 
Pick.  497  ;  Rex  v.  Vincent,  9  C.  &  P.  91 ;  tain  money  by  false  pretences  of  existing 
Commonwealth  v.  Kingsbury,  5  Mass.  facts,  it  is  no  objection  to  the  indictment 
106 ;  The  State  v.  Buchanan,  5  H.  &  J.  for  conspiracy,  that  the  money  was  to  be 
317.  obtained   through   the  medium  of  a  con- 

2  Ibid ;  The  People  v.  Mather,  4  Wend,  tract.  Regina  v.  Kendrick,  5  Q.  B.  49 ; 
265;  The  State  v.  Murray,  15  Maine,  Dav.  &  M.  208.  And  see  Regina  ».  But- 
100.  ton,  12  Jur.  1017;  Regina  v.  Gompertz,  9 

8  Rex  V.  Hollingberry,  4  B.  &  C.  329 ;  Q.  B.  824 ;  2  Cox,  C.  C.  145 ;  Common- 

6  D.  &  R.  345.     If  the  object  be  to  extort  wealth  v.  Ward,  1  Mass.  473. 

money  from  him,  it  is  immaterial  whether  ^  Rex  v.   Eccles,   1   Leach,  C.  C.  (4th 

the  charge  be  true  or  false.     Ibid.     And  ed.)  274. 

see  Wright  v.  Black,  Winch,  28,  54.  ^  The  State  v.  Buchanan,  5  Har.  &  J. 

*  1  Hawk.  P.  C.  ch.  72,  §  2;  Regina  y.  317;  Commonwealtli  v.  Warren,  6  Mass. 

Best,  2  Ld.  Raym.  1167.     And  see  Com-  74;  Lambert  y.  The  People,  7  Cowen,  166. 

monwealth  v.  Tibbetts,  2  Mass.  536.  i^  Rex  v.  Turner,  13  East,  228.     This 

5  Rex  V.  Rispal,  3  Burr.  1320;  1  W.  Bl.  case  has  been  overruled.  See  {?ifm,  §  90 
368.  a,  note. 

6  The  State  v.  Younger,  1  Dever.  357.  ^  Rex  v.  Pywell,  1  Stark.  R.  402.     See 

7  Rex  V.  Macarty,  2  Ld.  Raym.  1179;  infra,  §  90  a. 

The  State  v.  Rowley,  12  Conn.  101.     So,         12  Rex  v.  Mawbey,  6  T.  R.  619. 
to  defraud  a  trader  of  his  goods  by  false 


78  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

witness  from  attending  court  and  giving  evidence  ;  ^  or,  to  procure 
false  testimony  ;  or,  to  affect  and  bias  witnesses  by  giving  them 
money  ;  ^  or,  to  publish  a  libel,  or  handbills,  with  intent  to  influ- 
ence the  Jurors  who  might  try  a  cause  ; "  or,  to  procure  certain 
persons  to  be  placed  upon  the  Jury.*  4thly.  To  do  an  act,  not  un- 
laivful  m  an  individual,  but  with  intent  either  to  accomplish  it  by 
unlatvful  means,  or  to  carry  into  effect  a  design  of  injurious  tenden- 
cy to  the  jmhlic.  Of  this  nature  are  conspiracies  to  maintain  each 
other,  right  or  wrong ;  ^  or,  to  raise  the  price  of  stocks  or  goods  by 
artificial  excitement  beyond  what  they  would  otherwise  bring.^ 
So,  where  certain  brokers  agreed  together,  before  a  sale  at  auction, 
that  only  one  of  them  should  bid  on  each  article  sold,  and  that  the 
articles  purchased  should  afterwards  be  sold  again  by  themselves, 
and  the  proceeds  divided  ;  it  was  held  a  conspiracy.'^  So,  if  the 
workmen  of  any  trade  conspire  to  raise  the  price  of  wages  by  the 
adoption  of  rules  with  penalties,  or  other  unlawful  means  of  coer- 
cion ;  ^  or  if  the  masters  in  like  manner  conspire  to  reduce  them.^ 
5thly.  To  defraud  and  cheat  the  public,  or  whoever  may  he  cheated. 
Of  this  class  are  conspiracies  to  manufacture  base  and  spurious 
goods,  and  sell  them  as  genuine  ;  '^^  and  conspiracies  to  raise  the 
market  prices  by  false  news  and  artificial  excitements,  as  already 
mentioned  ;  and  conspiracies  to  smuggle  goods  in  fraud  of  the  rev- 
enue ;  "  or  to  defraud  traders  of  their  goods  by  false  pretences  ;  ^ 
and  the  like. 

[§  90  a.   "Without  attempting  to  reconcile  all  the  cases,  a  task 
nearly  hopeless  in  the  present  undefined  state  of  the  law  of  con- 

1  Rex  V.   Stcvcnton,   2   East,  R.   362.  Commonwealth  ?;.  Hunt,  4  Met.  Ill ;  Rex 

So,  to  destroy  evidence.     The  State  v.  De  v.  Bykerdyke,  1  M.  &  Rob.  179. 

Witt,  1  Hill  "(S.  Car.),  U  282.  ^  Per  Ld.  Kenvon,  in  Rexi;.  Hammond, 

-  Hex  V.  Johnson,  2  Show.  1.  2  Esp.  H.  719,  720. 

^  Rex  V.  Gray,  1  Burr.  .510;  Rex  v.  Jol-  i'  Commonwealth  v.  Judd,  2  Mass.  329. 

liflFe,  4  T.  R.  285 ;  Hex  v.  Burdett,  1  Ld.  "  Rei,nna  v.  Blake,  8  Jur.  145 ;  Id.  666 ; 

Raym.  148.  6  Q.  B.  126. 

*  Rex  V.  Opie,  1   Saund.  301.     [A  con-  i-  Kiiijr  v.  Regina,  9  Jur.  833  ;  7  Q.  B. 

spiraey  to  procure  certain  persons  to  vio-  782 ;  Rex  v.  Roberts,  1  Carapb.  399.     [As 

late  a  statute,  for  the  purpose  of  extorting  to  whether  a  conspiracy  to  cheat  and  de- 

moncy  from  them  by  eom))Oundin<;  their  fraud  an  individual  of  liis  goods  or  hinds  is 

offences,  is  indictable  whether  the   iUcgal  indictable  at  common  law,  without  speci- 

acts  were  jjrocured  or  not.     Ilazcn  v.  The  fying  the  means  or  i)roving  that  they  were 

Commonwealtli,  23   I'enn.  3.5.').     Allte.r  if  criminal,  see  Kegina  v.  Gompertz,  9  Q.  B. 

the  object  to  secure  the  detection  of  sus-  824;   Sydserff  t-.   Hcgina,  11  Id.  2»5;   Rex 

pected  offenders      Ibid.]  v.-  Gill,  2  B  &  Aid.  204  ;  The  People  v. 

^  The  Poulterer's  case,  9  Co.  56.  Richards,  1   Mich.  216  ;  Alderman  r.  The 

8  Rex  V.  De  Ben^nger,  3  M.  &  S.  68  ;  People,  4  Id.  414.   The  People  /■.  Lambert, 

Rex  V.  Norris,  2   Ld.   Ken.   300;   Rex   v.  9  Cowcn,  78  ;   Commonwealth  '•.  Slicdd,  7 

Ililbcrs,  2  Chitty,  R.  163.  Cush.  514;  Commonwealth  v.  Eastman,  1 

7  Levi  V.  Levi,  6  C.  &  P.  239.  Id.  189;  The  State  v.  Roberts,  34  Maine, 

8  The  People  v.  Fisher,  14  Wend.  9;  320.] 


PART  v.]  CONSPIRACY.  79 

spiracy,  a  general  rule  may  be  deduced  from  the  current  of  well- 
considered  cases,  that  an  indictable  conspiracy  must  be  a  corrupt 
confederation  to  promote  an  evil  in  some  degree  criminal,  or  to 
effect  some  wrongful  end  by  means  having  some  degree  of  crim- 
inality. Although  in  some  cases,  it  has  been  said,  that,  if  the  end 
is  unlaufid,  concerted  action  to  promote  it  is  indictable,^  yet  the 
word  "  unlawful "  is  to  be  taken  in  the  sense  of  crinmial,^  as  it  is 
unlawful  to  commit  a  trespass  ;  still  no  indictment  will  lie  for  a 
conspiracy  to  commit  such  a  civil  injury.'^  Indeed,  unless  some 
element  of  a  criminal  nature  enters  into  either  tlie  means  to  be 
used  or  the  purpose  to  be  effected,  no  indictment  will  lie  for  a  con- 
spiracy to  do  a  private  injury  when  a  civil  action  will  afford  re- 
dress. As  examples  of  the  means,  a  concert  by  nu7nhers  to  destroy 
a  man's  reputation,  or  by  false  accusation  to  cause  one  wrong- 
fully to  pay  money  ;  or,  as  to  the  end,  to  take  away  a  female  for 
the  purposes  of  prostitution,  this  being  an  offence  punishable  in 
the  ecclesiastical  courts  ;  *  or,  to  do  something  which  may  affect 
the  public  mediately  or  immediately.^  There  is,  however,  a  dispo- 
sition in  the  Courts  not  to  extend  the  law  of  conspiracy  beyond  its 
present  limits,  and  to  confine  it,  as  is  believed,  within  the  defini- 
tion above  given. ^] 

§  91.  The  essence  of  this  offence  consists  in  the  unlawful  Agree- 
ment and  combination  of  the  parties  ;  and  therefore  it  is  completed 
whenever  such  combination  is  formed,  although  no  act  be  done 
towards  carrying  the  main  design  into  effect.  If  the  ultimate  de- 
sign was  unlawful,  it  is  of  no  importance  to  the  completeness  of 
the  offence,  whether  the  means  were  lawful  or  not ;  as,  for  exam- 

1  Commonwealth  v.  Hunt,  4  Met.  Ill ;  Turner,  9  Q.  B.  80.  Regina  v.  Daniel],  6 
O'Connell  v.  Regina,  11  CI.  &  Fin.  155;  Mod.  99.  [See  Regina  v.  Carlisle,  25 
9  Jur.  25.  Eng.  Law  &  Eq.  R.  577.] 

2  Commonwealth  v.  Shedd,  7  Cush.  *  Rex  v.  Dolaval,  3  Burr.  1434;  1 
514.  Leading  Crim.   Cases,  457  ;  Rex  v.  Lord 

3  Rex  V.  Pywell,  1  Stark.  R.  402;  Rex  Gray,  9  Howell,  St.  Tr.  127. 

V.  Turner,  13  East,  228.     The  authority  &  "Hex  v.  De  Berenger,  3  M.  &  S.  67. 

of  Rex  ('.   Pywell  has  been  shaken;    He-  ^  Commonwealth  v.  Hunt,  4  Met.  124; 

gina  V.  Kenrick,  5  Q.  B.  62;  but  not  upon  Commonwealth  v.  Eastman,  1  Cush,  189  ; 

this  point.     Rex  v.  Turner,  cited  with  ap-  1  Leading  (.'rim.  Cases,  264.     [*  A  combi- 

probation  in  Commonwealth  v.  Hunt,  4  nation  to  induce  a  witness  to  go  from  one 

Met.  Ill,  has  been  distinctly  overruled;  State  to  another  to  testify,  by  means  of 

Regina  v.  Rowlands,  5  Cox,  C  C.  490  ;  2  pecuniary  inducements,  is  "not  a  conspira- 

Denison,  C.  C.  388 ;  9  Eng.  Law  &  Eq.  cy,  unless  the  design  is  to  induce  him  to 

R.  292  ;  upon  the  ground  that  the  indict-  testify  falsely ;  and  therefore  the  acts  and 

ment  charged  an  agreement  to  commit  an  declarations  of  one  of  the  persons  so  com- 

indictable  otfence  as  well  as  the  use  of  un-  bining    are    not    admissible    in    evidence 

lawful  means,  to  wit,  armed  numbers  pre-  against    the    others.      Commonwealth  v. 

pared  for  resistance  by  force.     And  see  Smith,  11  Allen,  243.] 
The  State  v.  Rickey,  4  Halst.  293 ;  In  re 


80  LAW   OF   EVIDENCE   IN    CRIMINAL   CASES.  [PART  V. 

pie,  in  a  conspiracy  to  extort  money  from  a  man  by  means  of  a 
criminal  charge,  the  conspiracy  for  this  object  is  criminal,  whether 
he  be  guilty  or  not  of  the  offence  imputed  to  him.  On  the  other 
hand,  if  the  ultimate  object  is  not  unlawful,  the  combination  to 
effect  it  is  not  an  offence,  unless  the  means  intended  to  be  em- 
ployed are  unlawful.^ 

§  92.  We  have  shown,  in  a  preceding  volume,  that  in  proving 
this  offence,  no  evidence  ought,  in  strictness,  to  be  given  of  the  acts 
of  strangers  to  the  record,  in  order  to  affect  the  defendants,  until 
the  fact  of  a  conspiracy  with  them  is  first  shown,  or  until  at  least  a 
primd  facie  case  is  made  out  either  against  them  all,  or  against 
those  who  are  affected  by  the  evidence  proposed  to  be  offered  ; 
and  that  of  the  sufficiency  of  s,viG\\  primd  facie  case,  to  entitle  the 
prosecutor  to  go  into  other  proof,  the  Judge,  in  his  discretion,  is 
to  determine.  But  this,  like  other  rules  in  regard  to  the  order  in 
which  testimony  is  to  be  adduced,  is  subject  to  exceptions,  for  the 
sake  of  convenience  ;  the  Judge  sometimes  permitting  evidence  to 
be  given,  the  relevancy  of  which  is  not  apparent  at  the  time  when 
it  is  offered,  but  which  the  prosecutor  or  counsel  shows  will  be 
rendered  so,  by  other  evidence  which  he  undertakes  to  produce.^ 
Accordingly,  it  is  now  well  settled  in  England,  and  such  is  con- 
ceived to  be  the  rule  of  American  law,  that  on  a  prosecution  for  a 
crime  to  be  proved  by  conspiracy,  general  evidence  of  a  conspiracy 
may  in  the  first  instance  be  received  as  a  preliminary  to  the  proof 
that  the  defendants  were  guilty  participators  in  that  conspiracy ;  but, 
in  such  cases,  the  general  nature  of  the  whole  evidence  intended 
to  be  adduced  should  be  previously  opened  to  the  Court,  so  that  the 
Judge  may  form  an  opinion  as  to  the  probability  of  affecting  the 
individual  defendants  by  particular  proof,  applicable  to  them,  and 
connecting  them  with  the  general  evidence  of  the  alleged  con- 
spiracy ;  and  if,  upon  such  opening,  it  should  manifestly  appear 
that  no  particular  proof,  sufficient  to  affect  the  defendants,  is  in- 
tended to  be  adduced,  it  would  be  the  duty  of  the  Judge  to  stop  the 

i  Rex  V.  Rest,  2  L(l.  Raym.  1167;    1  appear  where  the  parties  steadily  pursue 

Salk.   174;  Rex  v.  Sprajr','-,  2  Rurr.  993;  tlie  same  object,  wliether  acting:  separately 

Rex  V.  Rispal,  3   Burr.   1320;  U'Counell  or  together  by  coinnion  or  dillerent  means 

i;.  Regiua,  11  CI.  &  Fin.  155;  9  Jur.  25.  all  leading  to  the  same  unlawful  result; 

[The  unlawful  consjiirac-y  is  the  gist  of  tho  United  States  v.  Cole,  5  McLean,  513.] 

offence,  and  therefore  it  is  not  necessary  to  •^  See  ante,  Vol.  1,  §  51  a;  lb.  §  HI  ;  2 

allege  or  prove  the  execution  of  the  agree-  Stark.  Evid.  234 ;   liex  v.   Hammond,  2 

ment.      State    v.    Noyes,    25    Vt.    415.]  Esp.  R.  719;    [*  United  States  y.  Cole,  5 

[*  A  common  design  is  the  essence  of  the  McLean,  513.] 
charge  of  conspiracy ;  and  this  is  made  to 


PART  v.]  CONSPIRACY.  81 

cause  in  limine,  and  not  to  allow  the  general  evidence  to  be  re- 
ceived.^ 

§  93.  The  evidence  in  proof  of  a  conspiracy  will  generally, 
from  the  nature  of  the  case,  be  circumstantial.  Though  the  com- 
mon design  is  the  essence  of  the  charge,  it  is  not  necessary  to 
prove  that  the  defendants  came  together  and  actually  agreed  in 
terms,  to  have  that  design,  and  to  pursue  it  by  common  means. 
If  it  be  proved  that  the  defendants  pursued  by  their  acts  the  same 
object,  often  by  the  same  means,  one  performing  one  part  and 
another  another  part  of  the  same,  so  as  to  complete  it,  with  a  view 
to  the  attainment  of  that  same  object,  the  Jury  will  be  justified  in 
the  conclusion,  that  they  were  engaged  in  a  conspiracy  to  effect 
that  object.^  Nor  is  it  necessary  to  prove  that  the  conspiracy  origi- 
nated with  the  defendants  ;  or  that  they  met  during  the  process 
of  its  concoction  ;  for  every  person,  entering  into  a  conspiracy  or 
common  design  already  formed,  is  deemed  in  law  a  party  to  all 
acts  done  by  any  of  the  other  parties,  before  or  afterwards,  in  fur- 
therance of  the  common  design.^ 

§  94.  'The  principle  on  which  the  acts  and  declarations  of  other 
conspirators,  and  acts  done  at  different  times,  are  admitted  in  evi- 
dence against  the  persons  prosecuted,  is,  that  by  the  act  of  con- 
spiring together,  the  conspirators  have  jointly  assumed  to  them- 
selves, as  a  body,  the  attribute  of  individuality,  so  far  as  regards 
the  prosecution  of  the  common  design  ;  thus  rendering  whatever 
is  done  or  said  by  any  one,  in  furtherance  of  that  design,  a  part  of 
the  res  gestce,  and  therefore  the  act  of  all.  It  is  the  same  principle 
of  identity  with  each  other,  that  governs  in  regard  to  the  acts  and 
admissions  of  agents,  when  offered  in  evidence  against  their  prin- 
cipals, and  of  partners,  as  against  the  partnership,  which  has  al- 
ready been  considered.*  And  here,  also,  as  in  those  cases,  the 
evidence  of  what  was  said  and  done  by  the  other  conspirators  must 

1  The  Queen's  case,  2  Brod.  &  Bing.  Hunt,  3  B.  &  Aid.  566 ;  Rex  v.  Salter,  5 

310,  by  all  the  Judges.     And  see  Regina  Esp.  R.  225;  Commonwealth  v.  Warren, 

V.  Frost,  9  C.  &  P.  129;  Rex  v.  Hunt,  3  6    Mass.    74;    The  People  v.   Mather,   4 

B.  &  Aid.  566 ;  2  Russ.  on  Crimes,  699,  Wend.  259. 

700.  *  See  ante,  Vol.  1,  §  108-114;  Rex  v. 

'•!  Regina  v.  Murphy,  8  C.  &  P.  297,  per  Salter,  5  Esp.  125;  Collins  v.  The  Com- 

Coleridge,  J.     And  see  Commonwealth  v.  monwealth,  3  S.  &  R.  220 ;  The  State  v. 

Ridgway,  2  Ashm.  247  ;  [United  States  v.  Soper,  16  Maine,  293  ;  Aldrich  v.  Warren, 

Cole,  5  McLean,  513.]  Id.  465 ;    Regina  v.  Shellard,  9  C.  &  P. 

3  Ibid.     And  see  ante,  Vol.  1,  §  111,  and  277  ;  Regina  v.  Blake,  6  Q.  B.  126  ;  Rex 

cases  there  cited ;    Rex  v.  Cope,  1  Stra.  v.  Stone,  6  T.  R.  528.     And  see  Hardy's 

144;  Rex  u.  Parsons,  1  W.  Bl.  393 ;  Rex  case,  24  Howell's    St.    Tr.    199;    [United 

V.  Lee,  2  McNally  on  Evid.  634;  Rex  v.  States  v.  Cole,  5  McLean,  513.] 

VOL.  III.  6 


82  LAW   OF   EVIDENCE   IN    CRIMINAL    CASES.  [PART  V. 

be  limited  to  their  acts  and  declarations  made  and  done  while  the 
conspiracy  was  pending,  and  in  furtherance  of  the  design  ;  what 
was  said  or  done  by  them  before  or  afterwards  not  being  within 
the  principle  of  admissibility.^ 

§  95.  Where  the  conspiracy  was  to  do  an  act  in  itself  unlawful, 
the  means  intended  to  be  employed  to  effect  the  object  are  not 
usually  stated  in  the  indictment ;  nor  is  it  necessary,  in  such  case, 
to  state  them  ;  but  if  the  conspiracy  was  carried  out,  to  the  full 
accomplishment  of  its  object,  it  is  necessary  to  state  what  was 
done,  and  the  persons  who  wore  thereby  injured  or  defrauded  ; 
and  if  property  was  wrongfully  obtained,  to  state  what  and  whose 
property  it  was.  If,  however,  in  the  former  case,  the  means  to  be 
employed  are  set  forth,  it  is  conceived  that  the  prosecutor  is  bound 
to  prove  the  allegation,  as  he  certainly  ought  to  do,  in  the  latter 
case.  So,  if  the  object  to  be  effected  was  not  unlawful,  but  the 
means  intended  to  be  employed  were  unlawful,  it  is  obvious  that, 
as  the  criminality  of  the  design  consists  in  the  illegality  of  the 
means  to  be  resorted  to  for  its  accomplishment,  these  means  must 
be  described  in  the  indictment,  and  proved  at  the  trial.^ 

§  96.  In  the  proof  of  this  offence,  as  well  as  of  others,  the  evi- 
dence will  be  confined  to  the  particular  allegations  in  the  indict- 
ment. Thus,  if  the  indictment  charges  an  intent  to  defraud  J.  S. 
and  others,  of  their  goods,  and  it  appears  at  the  trial  that  J.  S.  was 
one  of  a  commercial  house,  the  evidence  must  be  confined  to  J.  S. 
and  his  partners  ;  and  evidence  of  an  intent  to  defraud  any  other 
persons  is  inadmissible.'^  So,  if  the  alleged  intent  be  to  defraud 
A.,  evidence  of  an  intent  to  defraud  the  public  generally,  or  who- 
ever might  be  defrauded,  will  not  support  the  allegation.*  But  if 
the  alleged  intent  be,  to  accomplish  several  illegal  objects,  it  will 
not  be  necessary  to  prove  all  the  particulars  of  the  charge  ;  but  it 
will  be  sufficient  if  a  conspiracy  to  effect  any  one  of  the  illegal  ob- 
jects, mentioned  in  the  indictment,  be  proved.*^  So,  if  an  intent 
be  alleged  to  prevent  the  workmen  of  A.  from  continuing  to  work, 
it  is  proved  by  evidence  of  an  intent  to  prevent  any  from  so  con- 
tinuing."    So,  if  the  indictment  be  against  journeymen  for  a  con- 

1  Ibid. ;  Rcfrina  r.  Murphy,  8  C.  &  P.  *  Coniinonwcalth  v.  Ilarlcv,  7  Met.  506 ; 
297;  Kc<rin!v  v.  Slu'llard,  9  0.  &  P.  277.         Commonwealth  v.  Kello-;g,"7  Gush.  473  ; 

2  2  Rii.ss.  on  Crimes,  G94,  69.'),  n. ;  Re-     ante,  §  17,  note. 

gina  v.  Parker,  6  Jur.  822;   3  Q.  B.  292;  ^  O'Connell  v.  Regina,   11   CI.  &  Fin. 

2  G.  &  1).  709.  155;  9  Jur.  25. 

^  Regina  V.  Stc(;l,  Car.  &  Marsh.  337;  «  Rex  v.  Bykerdyke,  1  M.  &  Rob.  179. 
2  Moody,  C.  C.  246. 


PART  v.]  CONSPIRACY.  83 

spiracy  to  prevent  their  employers  from  taking  any  apprentices^  it 
will  be  proved  by  evidence  of  their  having  quitted  their  employ- 
ment, with  intent  to  compel  their  employers  to  dismiss  any  person 
as  an  apprentice.^  And  if  the  indictment  contain  allegations  of 
several  illegal  acts  done,  pursuant  to  the  conspiracy,  on  a  certain 
day,  evidence  is  admissible  of  such  acts,  done  on  different  days? 

§  97.  If  two  only  be  charged  with  a  conspiracy,  and  one  be  ac- 
quitted, the  other  must  also  be  acquitted,  though  he  be  guilty  of 
doing  the  act  charged ;  for  it  will  be  no  conspiracy,  however 
otherwise  it  may  be  criminal.  And  if  one  of  several  defendants 
charged  with  this  offence  be  acquitted,  the  record  of  his  acquittal 
is  admissible  in  evidence,  in  favor  of  another  of  the  defendants, 
subsequently  tried.^  But  if  two  be  indicted,  and  one  die  before 
the  trial ;  or  if  three  be  indicted,  and  one  be  acquitted  and  the 
other  die ;  this  is  no  defence  for  the  other.*  Nor  is  it  exception- 
able that  one  is  indicted  alone,  if  the  charge  be  of  a  conspiracy 
with  other  persons  to  the  Jurors  unknown.^ 

§  98.  The  wife  of  one  of  several  conspirators  is  not  admissible 
as  a  witness  for  the  others ;  the  acquittal  of  the  others  being  a 
ground  for  discharging  her  husband.  Nor  is  she  a  competent  wit- 
ness against  him.^  And  it  is  said  that  if  a  man  and  woman  are 
jointly  indicted  for  a  conspiracy,  proof  that  they  were  husband 
and  wife  will  generally  be  a  complete  defence  against  the  charge ; 
on  the  ground,  that  being  regarded  as  one  person  in  law,  the  hus- 
band alone  is  responsible  for  the  act  done.  But  indictments 
against  the  husband  and  wife,  for  this  offence,  have  been  sup- 

1  T?ex  V.  Ferguson,  2  Stark.  R.  489.  h»d  conspired  with  either  B.  or  C,  but 

2  Rex  V.  Levy,  2  Stark.  R.  458.  And  that  they  could  not  say  with  which.  The 
see  Rex  v.  Charnock,  4  St.  Tr.  570.  evidence  at  the  trial  applied  only  to  A., 

3  Rex  V.  Tooke,  1  Burn's  Just.  823  B.,  and  0.  On  this  finding  it  was  held 
(Chitty's  ed.) ;  The  State  v.  Tom,  2  Dev.  that  A.  was  entitled  to  an  acquittal.  Re- 
569.  [If  all  be  convicted,  and  a  new  trial  gina  v.  Thompson,  20  L.  J.,  M.  C.  183; 
be  granted  on  grounds  applicable  only  to  5  Cox,  C.  C.  166;  4  Eng.  Law  &  Eq.  R. 
one,  it  must  be  granted  to  all ;  but,  if  some  287. 

be  convicted  and  others  acquitted,  a  new         •>  Commonwealth  v.  Robinson,  1  Gray, 

trial  may  be  granted  to  the  former  without  555  ;  Commonwealth  v.  Marsh,  1  Leading 

disturbing   the   verdict   as   to   the   latter.  Crim.  Cases,  124,  note;  Rex  y.  Locker,  5 

Regina  v.  Gompertz,  9  Q.  B.  824.]  Esp.  107  ;  Rex  v.  Serjeant,  Ry.  &  M.  352 ; 

*  The  People  v.  Olcott,  2  Johns.  Cas.  Rex  v.   Smith,    1   Moody,   C.  C.   289 ;    1 

301  ;  Rex  v.  Kinnersley,  1  Stra.  193;  Rex  Hawk.  P.  C.  ch.41,  §  13;  Commonwealth 

r.  Niccolls,  2  Stra.  1227.  v.  Easland,   1   Mass.   15;   Pullen  v.  The 

6  The  People  v.  Mather,  4  Wend.  229,  People,  1  Doug.  48  (Mich.).     But  see  The 

265.     In  a  very  recent  case,  in  the  Court  State  v.  Anthony,   1    McCord,  285.      See 

of  Queen's  Bench,  the  indictment  charged  further,  as  to  the  competency  of  the  wife, 

A.,  B.,  and  C.  with  conspiring  together,  ante,   Vol.    1,   §  335,  342,  407,  and  cases 

and  "  with  divers  other  persons  to  the  Ju-  there  cited. 
rors  unknown."     The  Jury  found  that  A. 


84  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

ported,  where  others  were  indicted  jointly  with  them.^  And  if  the 
conspiracy  were  concocted  before  the  marriage,  their  subsequent 
marriage  is  no  defence.^ 

§  99.  In  some  cases,  the  correspondence  between  the  defend- 
ants may  be  read  in  exculpation  of  one  of  them.  Thus,  where 
two  persons  were  indicted  of  a  conspiracy  to  defraud  a  third  per- 
son of  his  money,  by  inducing  him  to  lend  it  to  one  of  them  upon 
a  false  representation  of  his  titles  to  certain  estates ;  and  the  latter 
had  left  the  country,  and  the  other  defended  himself  on  the 
ground  that  his  co-defendant  had  made  the  same  representations 
to  him,  and  led  him  to  believe  them  to  be  true,  and  his  titles 
valid ;  the  correspondence  between  them  on  this  subject  was  held 
admissible,  to  show  that  the  party  on  trial  was  in  fact  the  dupe  of 
the  other,  and  had  acted  in  good  faith.^ 

1  Commonwealth  v.  Wood,  7  Law  Re-  raise  a  specious  title  to  his  property,  and 
porter,  58  ;  Hex  i'.  Locker,  5  Esp.  107.  the  marriage  was  accordingly  celebrated; 

2  In  Rex  V.  Robinson  and  Taylor,  I  for  which  they  were  afterwards  indicted 
Leach,  C.  C.  (4th  ed.),  37;  2  East,  P.  C.  and  convicted,  and  the  conviction  was  held 


1010,  a  servant  woman  conspired  with  a 

man,  that  he  should  personate  her  master,         ^  Rex  v.  Whitehead,  1  C.  &  P.  67. 

and  marry  her,  with  intent  fraudulently  to 


PART  v.] 


EMBRACERY. 


85 


EMBRACERY. 1 

[*§  100.  Embracery  defined. 

101.  Acts  constituting  the  crime  must  be  specifically  charged  and  proved.] 


§  100.  The  crime  of  embracery^  which  is  an  offence  against  pub- 
lic justice,  consists  in  attempting  to  corrupt,  instruct,  or  influence 
a  Jury  beforehand,  or  to  incline  them  to  favor  one  side  of  a  cause 
in  preference  to  the  other,  by  promises,  persuasions,  entreaties, 
letters,  money,  entertainments,  and  the  like  ;  or  by  any  other 
mode  except  by  the  evidence  adduced  at  the  trial,  the  arguments 
of  counsel,  and  the  instructions  of  the  Judge.^  The  giving  of 
money  to  another,  to  be  distributed  among  the  Jurors,  and  procur- 
ing one's  self  or  others  to  be  returned  as  talesman,  in  order  to 
influence  the  Jurors,  are  also  ofiences  of  this  description.^  It  may 
also  be  committed  by  one  of  the  Jurors,  by  the  above  corrupt 


1  An  indictment  for  Embracery  may  be 
in  this  form  :  — 

The  Jurors  (&c.)  on  their  oath  present, 

that  A.  B.  of ,  on  ,  at ,  in 

said  county  of ,  knowing  that  a  cer- 
tain Jury  of  said  county  of ,  was  then 

duly  returned,  impanelled,  and  sworn  to 

try  a  certain  issue  in  the  (describing 

the  Court),  then  held  and  in  session  accord- 
ing to  law,   at  aforesaid,  in  and  for 

said  county  of ,  between  C.  D.,  plain- 

tifi",  and  E.  F.,   defendant,  in  a  plea  of 

;  and  then  also  knowing  that  a  trial 

was  about  to  be  had  of  the  said  issue  in 
the  Court  last  aforesaid,  then  in  session  as 
aforesaid ;  and  unlawfully  intending  to 
hinder  a  just  and  lawful  trial  of  said  issue 
by  the  Jury  aforesaid  returned,  impanelled, 
and  sworn  as  aforesaid  to  try  the  same; 

on ,  at  ,  in  the  county  aforesaid, 

unlawfully,  wickedly,  and  unjustly,  on  be- 
half of  the  said  E.  F.,  the  defendant  in 
said  cause,  did  solicit  and  persuade  one  G. 
H.,  one  of  the  Jurors  of  said  Jury  returned, 
impanelled,  and  sworn  as  aforesaid,  for  the 
trial  of  said  issue,  to  appear,  attend,  and 
give  his  verdict  in  favor  of  the  said  E.  F., 
the  defendant  in  said  cause ;  and  then  and 
there  did  utter  to  the  said  H.  G.,  one  of 
said  Jurors,  divers  words  and  discourses 


by  way  of  commendation  of  the  said  E.  F., 
and  in  disparagement  of  the  said  C.  D., 
the  plaintiff  in  said  cause ;  and  then  and 
there  unlawfully  and  corruptly  did  move 
and  desire  the  said  G.  H.  to  solicit  and 
persuade  the  other  Jurors,  returned,  im- 
panelled, and  sworn  to  try  the  said  issue, 
to  give  their  verdict  in  favor  of  the  said  E. 
F.,  the  defendant  in  said  cause,  the  said  A. 
B.  then  and  there  well  knowing  the  said 
G.  H.  to  be  one  of  the  Jurors  returned, 
impanelled,  and  sworn  as  aforesaid; 
against  the  peace,  &c. 

Some  precedents  of  indictments  for  this 
offence  contain  an  allegation,  that  the  Jury 
gave  their  verdict  for  the  defendant,  by 
reason  of  the  words,  discourses,  &c.,  spoken. 
But  this  is  unnecessary.  The  crime  is 
complete  by  the  attempt,  whether  it  suc- 
ceed or  not.  Hawk.  P.  C.  b.  1,  ch.  85, 
§1,2;  1  Deacon,  Grim.  Law.  378. 

^  4  Bl.  Comm.  140;  1  Deacon,  Grim. 
Law,  378;  1  Eiiss.  on  Crimes,  182;  1 
Inst.  369  a ;  1  Hawk.  P.  C.  ch.  85,  §  1  ; 
Gibbs  V.  Dewey,  5  Cowen,  503.  See 
Knight  V.  Freeport,  13  Mass.  218. 

3  1  Hawk.  P.  C.  ch.  85,  §  3 ;  Rex  v. 
Opie,  1  Saund.  301 ;  1  Russ.  on  Crimes, 
182. 


86  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

practices  upon  his  fellows.  It  is  not  material  to  this  offence  that 
any  verdict  be  rendered  in  the  cause  ;  nor  whether  it  be  true  or 
false,  if  rendered. 

§  101.  As  this  offence  cannot  be  prosecuted  under  a  general 
charge,  but  the  acts  constituting  the  crime  must  be  specifically  set 
forth  in  the  indictment,  the  proof  on  either  side  will  consist  of  evi- 
dence proving  or  disproving  the  commission  of  the  acts  set  forth  as 
done  by  the  defendant. 


PART  v.]  FORGERY.  87 


FORGERY. 

[*§  102.    Statute  provisions,  additional  to  common  law. 

103.  Forgery,  the  fraudulent  making  or  alteration  of  a  writing,  to  the  prejudice 

of  another  man's  right. 

104.  Not  necessary  to  prove  entire  instrument  fictitious. 

105.  Instrument  must  be  calculated  to  deceive. 

106.  Proof  that  the  writing  is  false  may  be  by  person  acquainted  with  genuine,  or 

by  comparison. 

107.  Forged  writing,  if  in  existence,  must  be  produced  at  trial. 

108.  Must  agree  in  all  essential  respects  with  description  in  indictment. 

109.  If  prisoner  represent  it  as  particular  person's  note,  evidence  that  it  is  not, 

prima,  facie  proof  of  forgery. 

110.  Allegation   of  uttering  and   publishing  proved  by   evidence  that  prisoner 

offered  to  pass  instrument,  declaring  it  good. 

111.  In  proof  of  criminal  uttering,  guilty  knowledge  must  be  proved. 

Ilia.    Other  utterings  previous  to  principal  charge  admissible  to  prove  scienter. 

112.  What  evidence  necessary  to  prove  place  where  forgery  was  committed. 

113.  Parol  evidence  admissible  to  prove  that  the  person  whose  name  appears  on 

bank-note  as  president,  is  president.] 

§  102.  In  all  the  United  States,  this  offence  is  punishable  by 
statute  ;  but  it  is  conceived  that  these  statutes  do  not  take  away 
the  character  of  the  offence,  as  a  crime  or  misdemeanor  at  common 
law,  but  only  provide  additional  punishm'ents,  in  the  cases  particu- 
larly enumerated  in  the  statutes.^  By  the  common  law,  every 
forgery  is  at  least  a  misdemeanor,  though  some,  such  as  forgeries 
of  royal  charters,  writs,  &c.,  were  felonies,  and  in  some  cases  were 
punislied  as  treasons. ^ 

§  103.   It  seems  to  have  been  the  opinion  of  some  of  the  old 

^  Commonwealth  v.  Ayer,  3  Cush.  150;  to  distinguish  whether  it  be  a  royal  or  a 

The  State  i'.  Ames,  2  Greenl.  365.  private  charter,"  because  of  the  diversity 

^     This    distinction    is    mentioned    by  of  punishments  which  he  mentions ;  the 

Glanville,  the  earliest  of  the  common-law  former  being  punishable  as  treason,  and 

authors,  who  wrote  in  the  time  of  Henry  the  latter  by  the  loss  of  members  only, 

II.,   about  the   year   1180.      He  observes  Glanville,  b.  14,  ch.  7.     The  same  distinc- 

that  "  the  crime  of  falsifying,  in  a  general  tion  is  alluded  to  by  Bracton,  lib.  3,  ch.  3, 

sense,  comprises  under  it  many  particular  §  2,  and  ch.  6,  and  in  The  Mirror,  ch.  4, 

species,    as,    for   example,    fiilse   charters,  §12.    Falsifying  the  seal  of  one's  lord  was 

false  measures,  false  money,  and  others  of  also  punishable  capitally,  as  treason  ;  but 

a    similar    description."      And    he    adds,  forgeries   less    heinous  were  punished  by 

"that  if  a  person  should  be  convicted  of  the  pillory,  tumbril,  or  loss  of  members; 

falsifying  a  charter,  it  becomes  necessary  as  appears  from  Britton,  ch.  4,  §  1 ;  Id. 


88 


LAW   OF  EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


writers  on  criminal  law,  that  forgery  could  not  be  committed  of  a 
private  writing,  unless  it  was  under  seal ;  but  this  opinion  has 
long  since  been  discarded  ;  and  it  is  now  well  settled  that  forgery, 
in  the  sense  of  the  common  law,  may  be  defined,  as  "  the  fraudulent 
making  or  alteration  of  a  writing,  to  the  prejudice  of  another  man's 
right."  1  It  may  be  committed  of  any  writing,  which,  if  genuine, 
would  operate  as  the  foundation  of  another  man's  liability,  or  the 
evidence  of  his  right,  such  as  a  letter  of  recommendation  of  a  per- 
son as  a  man  of  property  and  pecuniary  responsibility  ;  -  an  order 
for  the  delivery  of  goods  ;  ^  a  receipt ;  *  or  a  railway  pass  ;  ^  as  well 
as  a  bill  of  exchange,  or  other  express  contract.^  So,  it  may  be 
committed  by  the  person's  fraudulently  writing  his  own  name, 
where  he  was  not  the  party  really  meant,  though  of  the  same 
name  ;  as,  where  one  who  was  not  the  real  payee  of  a  bill  of 
exchange,  but  of  the  same  name,  indorsed  his  own  name  upon  it, 
with  intent  to  give  it  currency  as  though  it  were  duly  negotiated  ; ' 
or,  where  one  claimed  goods  as  the  real  consignee,  whose  name 


ch.  8,  §  4,  5 ;  Fleta,  lib.  1,  ch.  22  ;  Id.  lib. 
2,  ch.  1  ;  3  Inst.  169;  2  Ld.  Raym.  1464. 
And  see  2  Russ.  on  Crimes,  .3.57,  358; 
Commonwealth  v.  Boynton,  2  Mass.  77. 

1  4  Bl.  Comm.  247.  Forgery  at  cora- 
mon  law  is  defined  by  Russell  (2  Crim. 
Law,  318),  and  his  definition  has  been 
adopted  by  the  Supreme  Judicial  Court  of 
Massachusetts,  to  be  "  a  folse  making,  or 
making  vialo  animo,  of  any  written  instru- 
ment, "for  the  purpose  of  fraud  and  de- 
ceit." Commonwealth  v.  Ayer,  3  Cush. 
150.  And  see  Rex  v.  Ward,  3  Ld.  Raym. 
1461;  2  Russ.  on  Crimes,  318,  357,  .358; 
Alison's  Crim.  Law  of  Scotland,  p.  371. 
[*  Forgery  may  be  of  a  printed  or  en- 
graved, as  well  as  of  a  written,  instru- 
ment. Commonwealth  v.  Ray,  3  Gray,  441 . 
But  it  must  be  of  some  document  or  writ- 
ing ;  therefore  the  painting  an  artist's  name 
in  the  corner  of  a  copy  of  a  ])icture,  in  order 
to  pass  it  off  as  an  original  picture  by  that 
artist  is  not  a  forgery.  Reg.  v.  Closs,  3 
Jur.  (N.  S.)  1.309.] 

2  The  State  v.  Ames,  2  Greenl.  365; 
The  State  v.  Smith,  8  Yerg.  151  ;  Com- 
monwealth I'.  Chandler,  Thach.  Cr.  Cas. 
187. 

8  Tlic  People  v.  Fitch,  1  Wend.  198  ; 
The  State  v.  Holly,  2  Bay,  262.  The 
false  making  of  an  acceptance  of  a  condi- 
tional order  for  the  delivery  of  goods,  is 
forgery  at  common  law.  ("ommonwcalth 
V.  Ayer,  3  Cush.  150.  [A  railway  compa- 
ny paid  its  dividends,  by  an  order  or  war- 
rant addressed  to  the  company's  banker. 
The  document  rcijuired  the  shareholder's 


indorsement,  and  it  would  not  be  paid  by 
the  banker,  even  to  the  shareholder  him- 
self, without  such  indorsement.  A  clerk 
of  the  company,  having  forged  an  indorse- 
ment of  the  shareholder's  name,  was  held 
pro])erly  convicted  of  forgery.  Regina  v. 
Autev,  7  Cox,  329.] 

*  "rhe  State  v.  Foster,  3  McCord,  442. 
[A  person  who  utters  a  forged  pawn- 
broker's duplicate  may  be  indicted  for 
uttering  a  forged  receipt.  Regina  v. 
Fitchie,  40  Eng.  Law  &  Eq.  R.  598.] 

5  Regina  v.  Boult,  2  C.  &  K.  604; 
Commonwealth  v.  Ray,  3  Gray,  441. 

^  In  Massachusetts,  the  society  of  Odd 
Fellows  has  regulations  by  which  a  mem- 
ber in  sickness  is  entitled  to  a  weekly  al- 
lowance of  money,  upon  producing  a  cer- 
tificate of  a  physician.  A  case  recently 
occurred  of  a  forgery  of  such  a  certificate. 
Commonwealth  r.  Ayer,  3  Cush.  153. 
[*  Making  a  false  entry  in  what  purports 
to  be  a  banker's  pass-book,  with  intent  to 
defraud,  is  a  forgery.  Reg.  v.  Smith,  1 
L.  &  C.  C.  C.  168.] 

f  Mead  v.  Young,  4  T.  R.  28.  And  see 
Rex  V.  Parkes,  2  Leach,  C.  C.  (4th  ed.) 
775  ;  2  East.  P.  C.  963.  [*  The  drawer 
of  a  check  on  a  bank  which  was  duly  hon- 
ored, and  returned  to  him  by  the  bank, 
afterwards  altered  his  signature  in  order 
to  give  it  the  ap])earanee  of  forgery,  and  to 
defraud  the  bank  and  cause  the  payee  of 
the  check  to  be  charged  with  forgery. 
Held,  this  alteration  was  not  a  forgery. 
Brittain  v.  Bank  of  London,  3  F.  &  F. 
465.1 


PART  v.]  FORGERY.  89 

•was  identical  with  his  own,  and,  in  that  character,  signed  over  the 
permit  for  their  landing  and  delivery,  to  one  who  advanced  him 
money  thereon.^  So,  if  one  sign  a  name  wholly  fictitious,  it  is  for- 
gery .^  But  if  there  be  two  persons  of  the  same  name,  but  of 
different  descriptions  and  addresses,  and  a  bill  be  directed  to  one, 
with  his  proper  address,  and  be  accepted  by  the  other  with  the  ad- 
dition of  his  own  address,  it  is  not  forgery.^  Nor  is  this  crime 
committed,  where  the  paper  forged  appears  on  its  face  to  be 
void  ;  as  where  it  was  a  promise  to  pay  a  certain  sum  in  work  and 
labor,  with  no  mention  of  value  received  in  the  note,  and  no  aver- 
ment of  any  in  the  indictment ;  *  or  where  a  will  is  forged,  without 
the  requisite  number  of  witnesses.^  To  constitute  this  offence,  it  is 
also  essential  that  there  be  an  intent  to  defraud ;  but  it  is  not  essen- 
tial that  any  person  be  actually  defrauded,  or  that  any  one  act  be 
done  towards  the  attainment  of  the  fruits  of  the  crime,  other  than 
making  or  altering  the  writing.^  Nor  is  it  necessary  that  the  party 
should  have  had  present  in  his  mind  an  intention  to  defraud  a  par- 
ticidar  person,  if  the  consequences  of  his  act  would  necessarily  or 
possibly  be  to  defraud  some  person  ; "'  but  there  must,  at  all  events, 
be  a  possibility  of  some  person  being  defrauded  by  the  forgery.^ 

1  The  People  v.  Peacock,  6  Cowen,  72.  put  to  use.     Alison's  Crim.  Law  of  Scot- 

2  Rex  V.  Bolland,  1  Leach,  C.  C.  (4th  land,  p.  401,  ch.  15,  §  19.  [Under  the  act 
ed.)  83  ;  2  East,  P.  C.  958  ;  Rex  v.  Tay-  of  the  United  States  against  counterfeit- 
lor,  1  Leach,  C.  0.  {4th  ed.)  214  ;  2  East,  ing,  it  is  no  offence  to  counterfeit  the  coin 
P.  C.  960 ;  Rex  v.  Marshall,  Russ.  &  Ry.  of  the  country  for  any  other  purpose  than 
75;  2  Russ.  on  Crimes,  331 -340.  [But  to  pass  it  as  genuine,  even  if  the  purpose 
it  is  not  forgery  to  sign  a  note  with  the  for  which  it  is  intended  be  morally  inde- 
name  of  a  fictitious  firm,  the  signer  false-  fensible.  United  States  r.  King,  5  Mc- 
ly  representing  himself  and  another  to  Lean,  208.]  [*  Counterfeiting  the  cur- 
be  members  thereof.  Commonwealth  v.  rent  coin  of  the  United  States  is  an  of- 
Baldwin,  21  Law  Rep.  562.]  fence  punishable  in  a  State  court,  in  the 

8  Rex  V.  Webb,  3  Brod.  &  Bing.  228 ;  absence   of   any   statutes   of    the   United 

Bayley  on  Bills,  605 ;  Russ.  &  Ry.  405.  States  forbidding  such  punishment.  State 

*  The  People  v.  Shall,  9  Cowen,  778  ;  v.  McPherson,  9  Iowa,  53.] 

Rex  V.  Jones,  1   Leach,  C.   C.  (4th  ed.)  "^  [But  see  Regina  v.  Hodgson,  36  Eng. 

204;   [People  v.  Harrison,   8  Barb.  560;  Law  &  Eq.  R.  626.] 

Commonwealth    v.    Ray,   3    Gray,    441  ;  *  Regina  v.  Marcus,  2  Car.  &  Kir.  358, 

State   V.    Humphreys,    10   Humph.   442.]  361 ;    Regina  v.   Hoatson,  2  Car.  &  Kir. 

[*  But  where  the  invalidity  is  to  be  made  777.     See  Regina  v.  Nash,  2  Denison,  C. 

out  by  proof  of  some  extrinsic  fact,  the  in-  C.  499,  503  ;  12  Eng.  Law  &  Eq.  H.  578 ; 

strument,  if  good  on  its  face,  may  be  legal-  16  Jur.  553 ;  21  Law  J.  Rep.  (N.  S.),  M. 

ly  capable  of  effecting  a  fraud,  and  the  C.  147.     [*  In  The  People  v.  Krummer,  4 

party  making  the  same  may  be  punished.  Parker,  C.  R.  (N.  Y.)  217,  it  is  held  that 

State  V.  Pierce,  8  Clarke  (Iowa),  231.]  it  is  not  necessary,  in  order  to  constitute 

5  Rex  V.  Wall,  2  East,  P.  C.  953.     And  forgery  of  an  instrument,  that  the  party  in 

see  2  Russ.  on  Crimes,  344,  353-355.  whose  name  it  purports  to  be  made  should 

8  Commonwealth   v.    Ladd,    15    Mass.  have  the  legal  capacity  to  make  it,  nor 

526 ;    The  State  v.  Washington,   1   Bay,  that  the   person   to   whom  it  is  directed 

120;    Rex  v.  Ward,  2  Ld.  Raym.  1461,  should  be  bound  to  act  upon  it  if  genuine, 

1469.     In  Scotland,  the  law  is  otherwise ;  or  have  a  remedy  over.     It  is  the  felonious 

the  crime  of  forgery  not  being  complete,  making  and  uttering  of  a  false  instrument 

unless  the  forged  instrument  be  uttered  or  as  true  in  fact,  which  constitutes  the  crime.] 


GO  LAW   OF   EVIDENCE   IN   CRIMNAL   CASES.  [PART  V. 

An  intent  to  defraud  the  person,  who  would  be  liable  to  discharge 
the  obligation  if  genuine,  is  to  be  inferred  by  the  Jury,  although, 
from  the  manner  of  executing  the  forgery,  or  other  circumstance, 
that  person  would  not  be  likely  to  be  imposed  upon,  and  although 
the  prisoner's  actual  intent  was  to  defraud  whoever  he  might  de- 
fraud.^ Uttering  a  forged  paper,  knowing  it  to  be  such,  with  in- 
tent to  defraud,  is  also  an  act  of  forgery,  punishable  by  the  common 
law;^  provided  some  fraud  be  actually  perpetrated  by  it.^ 

§  104.  The  usual  forin  of  charging  this  offence  in  the  indict- 
ment is,  that  the  defendant  "  feloniously  and  falsely  did  make, 
forge,  and  counterfeit "  the  writing  described,  "  with  intent  one  A. 
B.  to  defraud."  *  But  in  the  proof  of  the  charge  it  is  not  necessary 
to  show  that  the  eyitire  instrument  is  fictitious.  The  allegation 
may  be  proved  by  evidence  of  a  fraudulent  insertion,  alteration,  or 
erasure  in  any  material  part  of  a  true  writing,  whereby  another 
may  be  defrauded.^  And  where  the  evidence  was,  that  the  defend- 
ant, having  a  number  of  bank-notes  of  the  same  bank  and  the 
same  denomination,  took  a  strip  perpendicularly  out  from  a  differ- 
ent part  of  each  note,  with  intent  out  of  these  parts  to  form  an 
additional  note,  the  Court  seemed  inclined  to  think  that  the  act, 
if  completed,  would  amount  to  forgery.^     So,  in  an  indictment  for 

1  Rex  V.  Mazagora,   Bajley   on   Bills,  of  the  indictment  charged  him  with  hav- 

61.3;   Russ.  «fc  Ry.  291;   [Commonwealth  ing   uttered   the   forged   document.     The 

V.  Stevenson,  11  Cush.  481.]  Jury  acquitted   him  of  the   forgery,  but 

'^  Commonwealth  v.  Searle,  2  Binn.  found  him  guilty  of  the  uttering,  with  in- 
332.  As  to  what  constitutes  forgery,  see  tent  to  ol)tain  the  emoluments  of  the  place 
2  Russ.  on  Crimes,  318-361,  where  the  of  schoolmaster,  and  to  deceive  the  prose- 
subject  is  amph'  treated.  [*  The  altera-  cutor.  On  a  case  reserved,  it  was  held, 
tion  or  the  false  entry  of  a  sum  in  a  that  this  finding  of  the  Jury  amounted  to 
merchant's  journal  by  a  confidential  clerk,  an  offence  at  common  law,  of  which  the 
or  bookkeeper,  with  intent  to  defraud,  is  prisoner  was  properly  convicted.  But 
forgery  at  common  law.  Biles  v.  Com-  Williams,  J.,  remarked  that  Regina  v. 
monwealth,  32  Renn.  St.  R.  .529.  Where  Boult  had  created  some  doubt  in  his 
the   defendant   wrote   a   promissory   note  mind. 

for  $141.26,  and  read  it  to  another  who  *  [*  There  is  no  duplicity  in  an  indict- 

was  unable  to  read,  as  a  note  for  $41.26,  ment    in    alleging    that    the    respondent 

and  imluceil  him  to  sign  it  as  maker,  it  forged  and  caused  to  be  forged,  and  aided 

was  h('ld  that  this  did  not  constitute  forg-  and  assisted  in  forging,  —  tliey  being,  in 

cry.     Commonwealth  v.  Sankey,  22  Renn.  legal  contemplation,  the  same  act.     State 

St.   R.  390.     But  it  seems  that  it  is  forg-  r.  Morton,  27  Vt.  310.] 
cry    for   one    to  whom   a    blank   accept-  ''  1   Hale,  P.  C.  683  -  685 ;  1  Hawk.  P. 

nnce  is  intrusted,  to  fill  up  the  blank  by  C.  ch.  70,  §  2 ;  2  Russ.  on  Crimes,  319- 

inserting  a  sum  greater  than  he  is  author-  360;   3  Chitty,  Crim.  Law,  1038;    Com- 

\zed  to  insert.  Van  Duzer  v.  Howe,  21  monwealth  i'.  Ladd,  1.5  Mass.  .526 ;  Hex  y. 
N.  Y.  .531.]                                                           "  Atkinson,  7  C.  &  P.  669;  Rex  v.  Teague, 

3  Regitui  V.  Boult,  2  Car.  &  Kir.  604.  Russ.  &  Ry.  33 ;  2  East,  P.  C.  979 ;  Rex 

It  is  not  necessary  that  some  fraud  be  actu-  v.  Elsworth,  2  East,  P.  C.  986,  988  ;  Rex 

ally  perpetrated.     In  Regina  v.  Sharman,  v.  I'ost,  liuss.  &  Ry.  C.  C.   101 ;    Rex  v. 

18  Jur.  157;   6  Cox,  C.  C.  312;   24  Eng.  Treble,  Russ.  &  Ry.  C.  C.  164;  2  Taunt. 

Law  &  E(j.  R.  .553,  the  prisoner  was  in-  328. 

dieted  for  forging  a  testimonial  to  his  char-  "  Commonwealth  v.  Haywood,  10  Mass. 

actcr  as  a  schoolmaster,  and  other  counts  34.    And  see  the  Rev.  Sts.  of  Mass.  ch. 


PART  v.]  FORGERY.  91 

uttering  a  forged  stamp,  where  the  evidence  was  that  the  defend- 
ant, having  engraved  a  counterfeit  stamp,  in  some  parts  similar, 
and  in  others  dissimilar  to  the  genuine  stamp,  cut  out  the  dissimi- 
lar part  of  the  stamp,  and  united  the  dissevered  parts  together, 
covering  the  deficiency  by  a  waxen  seal  upon  it,  the  proof  was  held 
sufficient  to  support  an  indictment  for  forging  the  stamp.^  If  the 
evidence  be  that  the  act  was  done  by  several  persons,  either  by  em- 
ploying another  to  commit  the  deed,^  or  by  each  one  separately 
performing  a  distinct  essential  part  of  it,  as,  for  example,  if  it  be  the 
forgery  of  a  bank-note,  one  engraving  the  plate,  and  others  writing 
the  signatures  of  the  several  officers,  proof  of  the  part  performed 
by  the  prisoner  is  sufficient  to  support  an  indictment  against  him 
alone,  as  the  sole  forger  of  the  instrument;  though  he  does  not 
know  who  performed  the  other  parts,^ 

§  105.  It  must  appear  that  the  instrument,  on  its  face,  had  such 
resemblance  to  the  true  instrument  described,  as  to  be  calculated  to 
deceive  persons  of  ordinary  observation  ;  though  it  might  not 
deceive  experts,  or  persons  more  than  ordinarily  acquainted  with 
the  subject.*  The  want  of  such  appearance  on  the  face  of  the 
paper  cannot  be  supplied  by  evidence  of  any  declarations  or  repre- 
sentations, made  by  the  party  charged,  at  the  time  when  he  uttered 
and  passed  it  as  true  ;  as,  for  example,  if  it  be  a  fabricated  bank- 
note, but  not  purporting  to  be  signed  ;  ^  or  a  will,  not  having  the 
number  of  witnesses  expressly  required  by  statute,  in  order  to  its 
validity.^  But  a  mere  literal  mistake,  such  as  a  blunder  in  the 
spelling  of  a  name  will  not  make  any  difference  ;  it  being  sufficient 
to  constitute  the  crime,  if  a  signed  writing,  which  is  forged,  be  in- 
tended to  be  taken  as  true,  and  might  so  be  taken  by  ordinary  per- 
sons.'^ 

127,  §  12.     [See  Regina  !;.  Keith,  29  Eng.  Mcintosh,  2  East,  P.   C.  942;   Id.  950; 

Law  &  Eq.  R.  558.]  Rex  y.  Elliot,  1  Leach,  C  C.  (4th  ed.), 

1  Rex  V.  Collicott,  4  Taunt.  300.  175  ;   United  States  v.  Morrow,  4  Wash. 

2  Regina  v.  Mazean,  9  C.  &  P.  676.  73.3.     [The  same  rule  applies  to  counter- 

3  Rex   V.   Kirkwood,    1    Moudy,  C.  C.  feiting  coins.     United  States  v.  Bums,  5 
304;  Rex  v.  Dade,  Id.  307  ;  Rex  v.  Ring-  McLean,  23.] 

ley,  Russ.  &  Ry.  446.      If  one  part  of  a  *  Rex  v.  Jones,  1  Doug.  300 ;  1  Leach, 

machine  for  counterfeiting  bank-notes   is  C.  C.  (4th  ed. ),  204  ;  [Regina  v.  Keith,  29 

found   in   the   prisoner's    possession,   evi-  Eng.  Law  &  Eq.  R.  558.] 

dence  is  admissible   to   show   that  other  ^  Rex  v.  Wall,  2  East,  P.  C.  953.     And 

parts  were  found  in  the  possession  of  other  see  Rex  v.  Moffat,  1  Leach,  C.  C.  (4th 

persons,  with  whom  he  was  connected  in  ed.),  431. 

the  general  transaction.     United  States  v.  '  2  Russ.  on  Crimes,  348-350;  Rex  v. 

Craig,  4  Wash.  729.     See  Commonwealth  Fitzgerald,  1  Leach,  C.  C.  (4th  ed.),  20; 

V.  Ray,  3  Gray,  441.  2  East,  P.  C.  953 ;  Alison's  Crim.  Law  of 

*  2  Russ.  on    Crimes,  344;   Archbold,  Scotland,  ch.  15,  §  1,  p.  371. 
Crim.  PI.  (London  ed.  1853),  453;  Rex  v. 


92 


LAW   OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


§  106.  The  proof  that  the  tvriting  is  false  and  counterfeit  may  be 
made  by  the  evidence  of  any  person  acquainted  with  the  handwrit- 
ing of  the  party  whose  autograph  it  is  pretended  to  be,  or  by  com- 
paring it  with  genuine  writings  or  signatures  of  the  party,  in  the 
mode  and  under  the  limitations  stated  in  a  preceding  volume.^ 
And  it  is  now  well  settled,  that  the  person  whose  signature  or  writ- 
ing is  said  to  be  forged,  is  a  competent  witness,  in  a  criminal  trial, 
to  prove  the  forgery  ;  ^  but  he  is  not  an  indispensable  witness,  his 
testimony  not  being  the  best  evidence  which  the  nature  of  the  case 
admits,  though  it  is  as  good  as  any,  and  might,  in  most  cases,  be 
more  satisfactory  than  any  other.^  If  the  crime  consists  of  the  pris- 
oner's fraudulently  writing  his  own  acceptance  on  a  forged  bill  of 
exchange,  evidence  that,  when  the  bill  was  shown  to  him  in  order 
to  ascertain  whether  it  was  a  good  bill,  he  answered  that  it  was 
very  good,  is  admissible  to  the  Jviry,  and  is  sufficient  ground  for  a 
verdict  of  conviction.* 

§  107.  If  the  writing  said  to  he  forged  is  in  existence,  and  acces- 
sible, it  must  he  produced  at  the  trial.  But  its  absence,  if  it  be 
proved  to  be  in  the  prisoner's  possession,  or  to  have  been  destroyed 


1  For  the  proofs  of  handwriting,  see 
ante.  Vol.  1,  §  576,  581 ;  Commonwealth 
V.  Smith,  6  S.  &  R.  568;  The  State  v. 
Lawrence,  Brayt.  78 ;  The  State  v.  Carr, 
5  N.  Hamp.  367 ;  Martin's  case,  2  Leigh, 
745 ;  Commonwealth  v.  Carey,  2  Pick.  47  ; 
The  State  v.  Ravelin,  1  D.  Chipra.  (Vt.) 
R.  295 ;  The  State  v.  Candler,  3  Hawks, 
393;  Watson  v.  Cresap,  1  B.  Monr.  195; 
Foulker's  case,  2  Rob.  ( Va. )  836  ;  [Keith 
V.  Lothrop,  10  Cush.  453.]  [*  Where  the 
prisoner,  being  suspected  on  discovery  of 
the  forgery,  was  asked  to  write  his  name 
for  the  purpose  of  comparison,  and  did  so, 
it  was  held  that  this  signature  was  in- 
admissible on  the  part  of  the  prosecution 
for  that  purpose.  Reg.  v.  Aldridge,  3  F. 
&F.  781.] 

2  Ante,  Vol.  1,  §414;  Commonwealth 
V.  Peck,  1  Met.  428.  But  in  the  examina- 
tion of  such  witness,  it  is  deemed  improp- 
er to  conceal  from  him  all  the  writing  ex- 
cept the  signature ;  and  it  is  held,  that  he 
is  not  bound  to  answer  wheth(;r  the  signa- 
ture is  in  fdct  his,  without  first  seeing  the 
entire  paper.  Commonwealth  v.  Whitney, 
Thach.  C.  C.  588.  In  the  examination  of 
experts,  however,  and  of  other  persons 
testifying  their  o/nnions,  it  is  not  unusual 
to  conceal  all  but  the  signature.  The  rea- 
son for  this  difference  is  obvious.  Tlic 
party,  called  to  testify  to  a  fact,  upon  his 
own  knowledge,  is  entitled  to  all  the 
means  of  arriving  at  certainty ;  but  the 


opinions  of  other  persons  as  to  the  genu- 
ineness of  a  signature  ought  to  be  founded 
on  the  signature  alone,  unbiassed  by  any 
collateral  circumstances. 

3  2  Russ.  on  Crimes,  392 ;  Rex  v. 
Hughes,  2  East,  P.  C.  1002.  In  the 
Scotch  law,  the  oath  of  the  party,  whose 
signature  is  said  to  be  forged,  is  consid- 
ered the  best  evidence  of  the  forgery. 
Other  evidence  is  estimated  in  the  follow- 
ing order  :  —  1 ,  that  of  persons  acquainted 
with  his  handwriting,  and  who  have  seen 
him  write  ;  —  2,  that  of  persons  who  have 
corresponded  with  him,  without  having 
seen  him  write; — 3,  a  comparatio  iitera- 
rum  with  his  genuine  writings ; — 4,  that 
of  experts,  or  persons  accustomed  to  com- 
pare the  similitude  of  handwriting.  See 
Alison's  Crini.  Law  of  Scotland,  ch.  15, 
§  24,  p.  412.  But  in  England  and  the 
United  States,  in  these  different  kinds  of 
evidence,  there  is  no  hfjal  j)refercnce  of  one 
before  another,  however  differently  they 
may  be  valued  bv  the  Jurv.  See  ante, 
Vol.  1,  §84,  ,576 -.581.  [*"Upon  a  trial 
for  forgery,  testimony  that  the  respondent 
had  otiured  and  used,  in  support  of  the  in- 
strument alleged  to  be  forged,  a  false  and 
fictitious  deposition,  which  was  obtained 
by  his  personating  the  apparent  dejioiunt, 
is  admissible  as  tending  to  show  his  guilt. 
State  c.  Williams,  27  Vt.  726.] 

*  Rex  I',  llevey,  1  Leach,  C.  C.  (4th 
ed.),  232. 


PAET  v.] 


FORGERY. 


by  him,  or  otherwise  destroyed  without  the  fault  of  the  prosecutor, 
is  no  legal  bar  to  proceeding  in  the  trial,  though  it  may  increase 
the  difficulty  of  proving  the  crime.^  Thus,  where  the  forged  deed 
was  in  possession  of  the  prisoner,  who  refused  to  produce  it,  it  was 
held  that  the  Grand  Jury  might  receive  secondary  evidence  of  its 
contents,  and,  if  thereupon  satisfied  of  the  fact,  might  return  a  true 
bill ;  and  that,  on  the  trial  of  the  indictment,  the  like  evidence  was 
admissible.^  But  before  secondary  evidence  can  be  received  of  the 
contents  of  the  forged  paper,  in  the  prisoner's  possession,  due 
notice  must  he  given  to  the  prisoner  to  produce  it,  unless  it  clearly 
appears  that  he  has  destroyed  it.^ 

§  108.  The  writing,  when  produced  or  proved,  must  agree  in  all 
essential  respects  with  the  description  of  it  in  the  indictment ;  a 
material  variance,  as  we  have  heretofore  seen,  being  fatal.* 


^  Such  is  also  the  law  of  Scotland. 
Alison's  Crim.  Law,  p.  409,  ch.  15,  §  22. 

^  Rex  V.  Hunter,  3  C.  &  P.  591  ;  4  C. 
&  P.  128,  S.  C.  In  the  latter  case,  it  was 
held,  that  if  the  paper  was  in  the  hands  of 
the  prisoner's  counsel  or  attorney,  it  was 
the  duty  of  the  latter  not  to  produce  it, 
but  to  deliver  it  up  to  his  client.  See  also 
Rex  V.  Dixon,  3  Burr.  1687;  Anon.  8 
Mass.  370;  Dwyer  v.  Collins,  12  Eng. 
Law  &  Eq.  R.  532. 

3  2  Russ.  on  Crimes,  743  -  745  (3ded.); 
Rex  V.  Haworth,  4  C.  &  P.  254 ;  The 
State  V.  Potts,  4  Halst.  26  ;  United  States 
V.  Britton,  2  Mason,  464,  468 ;  Rex  v. 
Spragge,  cited  14  East,  276.  See  The 
United  States  v.  Doebler,  Baldwin,  519, 
522,  contra.  As  to  the  time  and  manner 
of  giving  notice,  and  when  notice  is  neces- 
sary, see  ante,  Vol.  1,  §  560-563.  If  the 
fact  of  the  destruction  of  the  instrument 
is  not  clearly  proved,  and  is  denied  by  the 
prisoner,  notice  to  produce  it  will  not  be 
dispensed  with.  Doe  v.  Morris,  3  Ad.  & 
El.  46. 

*  See  ante,  Vol.  1,  §  63  -70;  The  State 
V.  Handy,  20  Maine,  81  ;  Commonwealth 
V.  Adams,  7  Met.  50.  Thus,  if  the  indict- 
ment charge  the  forgery  of  "  a  certain 
warrant  and  order  for  the  payment  of  mon- 
ey," it  is  not  supported  by  proof  of  the 
forgery  of  a  warrant  for  the  payment  of 
money,  which  is  not  also  an  order.  Re- 
gina  c.  Williams,  2  Car.  &  Kir.  5 1 .  But 
in  a  very  recent  English  case,  it  has  been 
held,  that  if  the  instrument  be  set  out  in 
hoec  verba,  a  misdescription  of  it  in  the  in- 
dictment will  be  immaterial,  at  least  if  any 
of  the  terms  used  to  describe  it  be  appli- 
cable. In  this  case,  Parke,  B.,  said  :  "  The 
question  may  be  very  different  if  the  in- 
dictment sets  out   the  instrument,   from 


what  it  would  be  if  it  merely  described  it 
in  the  terms  of  the  statute.  In  the  former 
case,  the  matter,  which  it  is  contended  is 
descriptive,  may  be  mere  surplusage,  for 
when  the  instrument  is  set  out  on  the  rec- 
ord, the  Court  are  enabled  to  determine 
its  character,  and  so  a  description  is  need- 
less. Regina  v.  Williams,  2  Denison,  C. 
C.  61;  1  Temple  &  Mew.  C.  C.  382;  4 
Cox,  C.  C.  256 ;  2  Eng.  Law  &  Eq.  R. 
533  (1850).  In  this  case  the  indictment 
charged  the  defendant  with  having  forged 
"  a  certain  warrant,  order,  and  request,  in 
the  words  and  figures  following,"  etc.  It 
was  objected  that  the  paper,  being  only  a 
request,  did  not  support  the  indictment, 
which  described  it  as  a  warrant,  order,  and 
request.  But  it  was  held,  that  there  was 
no  variance,  as  the  document,  being  set 
out  in  full  in  the  indictment,  the  descrip- 
tion of  its  legal  character  became  immate- 
rial. Parke,  B.,  suggested  that  the  cor- 
rect course  would  have  been,  to  have 
alleged  the  uttering  of  one  warrant,  one 
order,  and  one  request.  "  The  principle  of 
this  decision  seems  to  be,"  says  Denison, 
"  that  where  an  instrument  is  described  in 
an  indictment  by  several  designations,  and 
then  set  out  according  to  its  tenor,  either 
with  or  without  a  videlicet,  the  Court  will 
treat  as  surplusage  such  of  the  designa- 
tions as  seem  to  be  misdescriptions,  and 
treat  as  material  only  such  designations  as 
the  tenor  of  the  indictment  shows  to  be 
really  applicable.  And  where  the  indict- 
ment is  so  drawn  as  to  enable  the  Court  to 
treat  as  material  only  the  tenor  of  the  in- 
dictment itself,  all  the  descriptive  aver- 
ments may  be  treated  as  surplusage.  The 
principal  case  seems  reconcilable  with  Re- 
gina V.  Newton,  2  Moody,  C.  C.  59,  but  to 
overrule  Regina  v.  Williams,  2  Car.  &  Kir. 


94  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

§  109.  If  the  prisoner,  on  uttering  a  forged  note  made  payable 
to  himself,  represent  the  maker  as  being  at  a  particular  place,  and 
engaged  in  a  particular  business,  evidence  that  it  is  not  that  per- 
son's note  is  sufficient  primd  facie  proof  of  the  forgery  ;  for  the 
prisoner,  being  the  payee  of  the  note,  must  have  known  who  was  the 
maker.  And  if  it  should  appear  that  there  is  another  person  of 
the  same  name,  but  engaged  in  a  different  business,  it  will  not  be 
necessary  for  the  prosecutor  to  show  that  it  was  not  this  person's 
note ;  it  being  incumbent  on  the  prisoner  to  prove  that  it  is  the  gen- 
uine note  of  such  other  person.^  So,  where  the  prisoner  obtained 
money  from  a  person,  for  a  check  drawn  upon  G.  A.  iipon  a  certain 
banking  house,  and  it  appeared  that  no  person  of  that  name  kept 
an  account,  or  had  funds  or  credit  in  that  house,  this  was  held 
sufficient  primd  facie  evidence  that  G.  A.  was  a  fictitious  person 
until  the  prisoner  should  produce  him,  or  give  other  sufficient  ex- 
planatory proof  to  the  contrary .^  Where  inquiries  are  to  be  made 
in  regard  to  the  residence  or  existence  of  any  supposed  party  to  a 
forged  instrument,  it  is  proper  and  usual  to  call  the  police  officers, 
penny-postman,  or  other  persons  well  acquainted  with  the  place 
and  its  inhabitants  ;  but  if  inquiries  have  been  made  in  the  place 
by  a  stranger,  his  testimony,  as  to  the  fact  and  its  results,  is  admis- 
sible to  the  Jury,  though  it  may  not  be  satisfactory  proof  of  the 
non-existence  of  the  person  in  question.^  If  the  forgery  be  by  exe- 
cuting an  instrument  in  a  fictitious  name,  for  the  purpose  of 
defrauding,  the  prosecutor  must  show  that  the  fictitious  name  was 
assumed  for  the  purpose  of  defrauding  in  that  particular  instance  ; 
it  will  not  be  siifficient  to  prove  that  it  was  assumed  for  general 
pvirposes  of  concealment  and  fraud,  unless  it  appears  that  the  par- 
ticular forgery  in  question  was  part  of  the  general  purpose.^  And 
if  there  be  proof  of  the  prisoner's  real  name,  the  burden  is  on  him 

51."     In  Kcfrina  v.  Charretie,  3  Cox,  C.  C.  lb.   203;     Comijionwealth    v.   Taylor,    5 

503  (1849),  Davison,    amicus  curm,  men-  Cush.  605.     But  the  name  of  the  State  to 

tioncJ  that  Crcsswell,  J.,  in  a  subsequent  wliich  the  banit  belongs,  inserted  in  the 

case,  had  declined  to  act  upon  the  authority  margin  of  the  note  and  not  repeated  in  its 

of  Regina  v.  Williams,  2  Car.  &  Kir.  ,51.  body,  is  part  of  its  date,  and  therefore  of 

And    sec    Commonwealth    v.    Wright,    1  the  contract,  and  the  omission  of  it  in  tho 

Leading  Crim.  Cases,  319.     [In  an  indict-  indictment  is  a  fatal  variance.     Common- 

ment  for  uttering  a  forged  bank-bill,  it  is'  wealth  v.  Wilson,  2  Gray,  70.] 

not  necessary  to  set  forth  those  parts  of  the  ^  Rex    v.    Hampton,   1   Moody,    C.  C. 

bill  which   arc  merely  repetitions  of  the  2.55. 

essential  parts  of  the  contract,  such  as  fig-  ■'  Rex  v.  Backler,  5  C.  &  P.  118.     And 

Tires   and   words   in    the   margin,  or  only  see  Rex  v.  Rrannan,  6  C.  &.  P.  326. 

serve  as  check  marks  for  the  benefit  of  the  ^  Rex  v.  King,  5  C.  &  P.  123. 

bank  officers.     (Commonwealth  v.  Bailey,  *  Rex  v.  Bontien,   Russ.  &  Ry.  C.  C. 

1  Mass.  62;   Commonwealth  v.  Stevens,  260. 


PART  v.]  FORGERY.  95 

to  prove,  that  he  used  the  assumed  name,  before  the  time  when  he 
contemplated  the  particular  fraud. ^ 

§  110.  The  allegation  of  utteriny  and  puhlisMng  is  proved  by 
evidence  that  the  prisoner  offered  to  pass  the  instrument  to  another 
person,  declaring  or  asserting,  directly  or  indirectly,  by  words  or 
actions,  that  it  was  good?  The  act  of  passing  is  not  complete  until 
the  instrument  is  received  by  the  person  to  wliom  it  is  offered.^ 
If  the  instrument  is  uttered,  through  the  medium  of  an  innocent 
agent,  this  is  proof  of  an  uttering  by  the  employer  ;  *  and  this 
principle  seems  equally  applicable  to  the  case  of  uttering  by  means 
of  a  guilty  agent.^  If  the  instrument  be  delivered  conditionally^  as, 
for  example,  to  stand  as  collateral  security,  if,  upon  inquiry,  it  be 
found  satisfactory,  this  is  sufficient  proof  of  uttering  it.^  But  if  it 
be  given  as  a  specimen  of  the  forger's  skill  ; "  or  be  exhibited  with 
intent  to  raise  a  false  belief  of  the  exhibitor's  property  or  credit, 
though  it  be  afterwards  left  with  the  other  party,  sealed  in  an 
envelope,  to  be  kept  safely,  as  too  valuable  to  be  carried  about  the 
person  ;  this  is  not  sufficient  evidence  to  support  the  allegation  of 
uttering.^  The  offence  of  uttering  forged  bank-notes  is  committed, 
although  the  person  to  whom  the  notes  were  delivered  is  the  agent 
of  the  bank,  employed  for  the  purpose  of  detecting  persons  guilty 
of  forging  its  notes,  but  representing  himself  to  the  prisoner  as  a 
purchaser  of  such  spurious  paper .^ 

§  111.    In  proof  of  the  criminal  uttering  of  a  forged  instrument, 

1  Rex  V.  Peacock;  Russ.  &  Ry.  C.  C.  to  a  person  with  whom  the  defendant  is 

278.  claimini^  credit  for  it,  was  held  to  be  an 

-  Commonwealth  y.  Searle,  2  Binn.  399,  offering-  or  uttering  within  the  statute  I 

per  Tilghman,  C.  J.     And  see  The  United  W.  4,  ch.  66,  §  10,  although  the  defendant 

States  V.  Mitchell,  Baldwin,  367 ;  Rex  v.  refused  to  part  with  the  possession  of  it. 

Shukard,  Russ.  &  Ry.  C.  C.  200.  Regina  v.  Radford,  1   Denison,  C    C.  59 ; 

3  Ibid.     The  word  "  pass,"   as  applied  1  Leading  Crim.  Cases,  397  ;   1  Car.  &  Kir. 

to  bank-notes,  is  technical,  and  means  to  707;    1   Cox,  C.  C.   168.     And  where  the 

deliver  them  as  money,  or  as  a  known  and  defendant  placed  a  forged  receipt  for  poor 

conventional  substitute  for  money.     Hop-  rates  in  the  hands  of  the  prosecutor,  for 

kins  V.  The  Commonwealth,  3  Alet.  464,  the  purpose  of  inspection  only,   in  order, 

per  Shaw,  C.  J.  by  representing  himself  as  a  person  Avho 

*  Commonwealth  v.  Hill,  11  Mass.  13G  ;  had  paid  his  poor  rates,  fraudulently  to  in- 
Foster,  C.  L.  Disc.  3,  ch.  1,  §  3,  p.  349  ;  duce  the  prosecutor  to  advance  money  to 
[Regina  p.  Fitchic,  1  Dears.  &  JBell,  175;  a  third  person,  for  whom  the  defendant 
40  Eng.  Law  &  Eq.  R.  598.]  proposed  to  become  a  surety  for  its  repay- 

5  Rex  V.  Giles,  1  Moody,  C.  C.  166;  ment;  this  was  held  an  uttering  within 
Rex  V.  Palmer,  1  New  Itep.  96;  The  the  statute  1  W.  4,  ch.  66,  §  10;  Regina 
United  States  ('.  Morrow,  4  Wash.  733.  v.    Ion,    16   Jur.    746;    1    Leading   Crim. 

6  Regina  v.  Cooke,  8  C.  &  P.  582.  Cases,  400 ;  2  Denison,  C.  C.  475  ;  6  Cox, 

7  Rex  V.  Harris,  7  C.  &  P.  428.  C.  C.  1 ;  14  Eng.  Law  &  Eq.  R.  556.     The 

*  Rex  V.  Shakard,  Russ.  &  Ry.  C.  C.  rule  there  laid  down  is,  that  a  using  of  the 
200 ;  Bayley  on  Bills,  609.  forged  instrument  in   some  way  in  order 

^  Rex  1'.  Holden,  2  Taunt.  334  ;  Russ.  to  get  money  or  credit  upon  it,  or  by  means 
&  Ry.  C.  C.  154 ;  2  Leach,  C.  C.  (4th  ed.)  of  it.  is  sufficient  to  constitute  the  offence 
1019.     But  the  showing  a  forged  receipt      described  in  the  statute. 


96 


LAW   OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


it  is  essential  to  prove  guilty  hnoivledge  on  the  part  of  the  utterer. 
And  to  show  this  fact,  evidence  is  admissible  that  he  had  about  the 
same  time  uttered,  or  attempted  to  utter,  other  forged  instruments, 
of  the  same  description  ;  ^  or,  that  he  had  such  others,  or  instru- 
ments for  manufacturing  tliem,  in  liis  possession  ;  ^  or,  tliat  he 
pointed  out  tlie  place  where  such  others  were  bj  him  concealed  ;  ^ 
or,  that  at  other  utterings  of  the  same  sort  of  papers,  he  assumed 
different  names  ;  ^  or  that  he  uttered  the  paper  in  question  under 
false  representations  made  at  the  time,  or  the  like.^  But  where 
such  other  instruments,  said  to  be  forged,  are  offered  in  proof  of 
guilty  knowledge,  there  must  be  strict  proof  that  they  are  for- 
geries.^ And  when  evidence  is  given  of  other  utterings,  in  order 
to  show  guilty  knowledge  in  the  principal  case,  the  evidence  must 
be  confined  to  the  fact  of  the  prisoner's  having  uttered  such  forged 
instruments,  and  to  his  conduct  at  the  time  of  uttering  them  ;  it 
being  improper  to  give  evidence  of  what  he  said  or  did  at  any  other 
time,  collateral  to  such  other  utterings,  as  the  prisoner  could  not  be 
prepared  to  meet  it.'^ 

8  Rex  V.  Rowley,  Russ.  &  Ry.  C.  C. 
110;  Bayley  on  Bills,  618. 

*  Rex  V.  Millard,  Russ.  &  Ry.  C.  C.  245 ; 
Bayley  on  Bills,  619  ;  Rex  w.'Ward,  Id. 

6  Rex  V.  Sheppard,  Rnss.  &  Ry.  C.  C. 
169;  1  Leach,  C.  C.  (4th  ed.)  226;  2 
East,  P.  C.  697.  And  sec  The  State  v. 
Smith,  5  Day,  175.  On  the  trial  of  two 
persons  for  the  joint  possession  of  counter- 
feit bank-notes  with  intent  to  utter  them, 
it  is  competent  to  show  that  one  of  them, 
at  another  time  and  place,  had  other 
counterfeit  notes  in  his  possession,  in  or- 
der to  prove  his  s'uilty  knowledg-e.  Com- 
monwealth V.  Woodbury,  Thach.  Crim. 
Cas.  47.  [So,  also,  guilty  knowledge  may 
be  inferred  from  the  fact  that  tlie  pi'isoner 
had  a  large  quantity  of  counterfeit  coin  iu 
his  possession,  many  ])icces  being  of  the 
same  sort,  of  the  same  date,  and  made  in 
the  same  mould,  each  piece  being  wrapped 
in  a  separate  piece  of  ])a})er,  and  the  whole 
being  distributed  in  diflerent  pockets  of 
the  dress.  Regina  v.  Jarvis,  33  Eng.  Law 
&  Eq.  Rep.  .'567.] 

«  Rex  V.  J'orbes,  7  C.  &  P.  224.  And 
see  Rex  i;.  Millard,  Russ.  &  Ry.  C.  C. 
245.  See  also  State  v.  Williams,  27 
Verm.  724. 

7  Phillip's  case,  1  Lewin,  C.  C.  105; 
The  State  v.  Van  Heretcn,  2  Penn.  672 ; 
Commonwealth  v.  Bigclow,  8  Met.  235. 
And  see  ante.  Vol.  1,  §  52,  .53;  Rex  v. 
Forbes,  7  C  &  P.  224  ;  Hcirina  v.  Cooke, 
8  C.  &  P.  58G.  In  liegina  v.  Butler,  2  C. 
&  K.  221,  evidence  of  what  the  prisoner 


1  Rex  V.  Wylie,  1  New  Rep.  92;  1 
Leading  Crim.  Cases,  185;  Rex  v.  Ball,  I 
Camp.  324;  Supra,  §  15;  The  United 
States  V.  Roudenbush,  Baldwin,  514; 
The  United  States  i'.  Doebler,  Id.  519; 
The  State  v.  Antonio,  Const.  Rep.  (S.  C.) 
776.  See  Alison's  Crim.  Law  of  Scot- 
land, ch.  15,  §  28,  p.  419-422,  where  the 
circumstances  evincing  guilty  knowledge 
are  more  amply  detailed.  See  also  Re- 
gina V.  Oddy,  5  Cox,  C.  C.  210;  [Mc- 
Cartney V.  State,  3  Ind.  353.  Evidence 
that  soon  after  the  prisoner's  arrest  similar 
forgeries  were  found  in  the  pockets  of  his 
wife,  without  other  proof  of  concert  be- 
tween them,  is  held  inadmissible.  People 
V.  Thorns,  3  Parker,  C.  R.  256.]  [*  In 
Reg.  V.  Salt,  3  V.  &  F.  834,  it  is  said  to  be 
impossible  to  lay  down  any  general  rule 
as  to  the  time  within  which  such  previous 
uttering  must  have  taken  place  to  be  ad- 
missible.] 

^  Hex  V.  Hough,  Russ.  &  Ry.  C.  C. 
120;  Commonwealth  v.  Stone,  4  Met. 
43;  Bayley  on  Bills,  617.  Proof  of  the 
possession,  at  the  same  time,  of  other 
forged  instruments,  of  a  diifercnt  descrip- 
tion, has  l)een  admitted.  Sunderland's 
case,  1  Lewin,  C.  C.  102  ;  Kirk  wood's  case, 
Id.  103;  Martin's  ca.se.  Id.  104;  Rex  v. 
Crocker,  2  New  Rep.  87,  95  ;  Hess  v.  The 
State,  5  Ham.  5 ;  Hendrick's  case,  5 
Leigh,  707  ;  The  State  i\  McAllister,  24 
Maine,  139;  [United  States  v.  Burns,  5 
McLean,  23  ;  United  States  v.  King,  Id. 
208.]     See  supra,  §  15. 


PART  v.] 


FORGERY. 


97 


§  111  a.  It  is  now  the  settled  law  of  England,  that  this  species 
of  evidence  may  be  admitted  to  prove  the  scietiter  in  trials  for 
forgery,  uttering,  or  having  in  possession,  false  notes,  bills  of 
exchange,  or  bank-bills,  of  all  descriptions,  if  previous  to  the  prin- 
cipal charge.^  The  same  doctrine  is  applied  to  the  crime  of  utter- 
ing counterfeit  coin.^  In  America,  this  exception  in  the  law  of 
evidence  has  been  adopted,  both  in  practice  and  by  authority.^ 
This  kind  of  evidence  has  been  extended  to  proof  of  the  scienter  on 
the  trial  of  an  indictment  for  falsely  representing  the  bill  of  an  in- 
solvent bank  as  good,  and  thereby  obtaining  property  with  intent 
to  defraud."*] 


said  about  money  of  the  prosecutor,  found 
in  his  possession  at  tlie  time  of  his  arrest, 
other  than  that  for  which  he  was  indicted, 
was  held  not  to  be  competent,  and  the 
case  may  thus  be  reconciled.  If  such 
other  utterin^s  are  the  subject  of  distinct 
indictments,  the  evidence  will  not  on  that 
account  be  rejected.  Commonwealth  v. 
Stearns,  10  Met.  256  ;  Regina  v.  Ashton,  2 
liuss.  on  Crimes,  406,  407,  per  Anderson, 
B. ;  Regina  r>.  Lewis,  Archb.  Crim.  PI. 
(London  ed.  1853),  per  Ld.  Denman.  In 
Rex  V.  T.  Smith,  2  C.  &  P.  633,  such  evi- 
dence was  rejected  bv  Vaughan,  B.  But 
in  Rex  v.  F.  Smith,  4  C.  &  P.  411,  Gase- 
lee,  J.,  after  consulting  the  Ld.  Ch.  Bar- 
on, and  referring  to  Russell,  as  above 
cited,  was  disposed  to  admit  it.  See  ace. 
The  State  v.  Twitty,  2  Hawks,  248; 
Commonwealth  v.  Percival,  Thach.  Crim. 
Cas.  293. 

^  Rex  V.  Wiley,  1  Leading  Crim.  Cases, 
189  ;  Regina  ».  Nisbett,  6  Cox,  C.  C.  320  ; 
Rex  V.  Taverner,  4  C.  &  P.,  note,  is  an 
authority  that  the  subsequent  utterings 
cannot  be  given  in  evidence,  unless  compe- 
tent on  other  grounds.  But  see  Rex  v. 
Smith,  2  C.  &  P.  633.  [*  It  was  held,  in 
BluiFe.  State,  10  Ohio  (N.  S.),  547,  that, 
under  an  indictment  for  having  counter- 
feit notes  with  guilty  intent,  the  State 
cannot  be  allowed  to  prove  the  prisoner's 
possession  of  material  and  appliances  for 
making  counterfeit  coin,  in  order  to  prove 
a  scienter  or  an  intent  to  utter.  And 
in  Lane  v.  State,  16  Ind.  14,  rjucere,  wheth- 
er, on  trial  for  passing  counterfeit  gold 
coin,  evidence  tliat  defendant  had  in  his 
possession,  and  attempted  to  secrete,  coun- 
terfeit bank-notes,  is  admissible  to  prove 
scienter.] 

^  Harrison's  case,  2  Lewin,  C.  C.  118; 
Regina  v.  Foster,  6  Cox,  C.  C. ;  29  Eng. 
Law  &  Eq.  R.  548;  The  Monthly  Law 
Reporter,  Vol.  8,  N.  S.  404.  [*  Under  an 
indictment  for  counterfeiting  coin,  proof  of 

VOL.    III.  7 


intent  to  pass  it  is  not  essential ;  it  is  pre- 
sumed, until  the  contrary  is  shown.  State 
V.  McPherson,  9  Iowa,  53.] 

^  Commonwealth  v.  Bigelow,  8  Met. 
235  ;  Commonwealth  v.  Stearns,  10  Met. 
256 ;  The  State  v.  McAllister,  24  Maine, 
139 ;  Commonwealth  v.  Turner,  3  Met. 
19;  The  United  States  v.  Roudenbush, 
Baldwin,  514 ;  The  State  ».  Antonio,  2 
Const.  Rep.  776. 

*  Commonwealth  v.  Stone,  4  Met.  43, 
47.  The  Court  said  that  the  case  is  strict- 
ly an.alogous  to  the  rule  in  relation  to 
proof  of  tlie  scienter  on  a  charge  of  passing 
counterfeit  bills  or  coins,  which  is  well  es- 
tablished here  and  in  England.  In  Regi- 
na V.  Oddy,  5  Cox,  C.  C.  210 ;  2  Denison, 
C.  C.  264;  4  Eng.  Law  &  Eq.  R.  572; 
Lord  Campbell,  C.  J.,  said :  "  I  am  of 
opinion  that  the  evidence  objected  to  was 
as  admissible  under  the  first  two  counts  as 
it  was  under  the  third,  for  it  was  evidence 
that  went  to  show  that  the  prisoner  was  a 
very  bad  man,  and  a  likely  person  to  com- 
mit such  offences  as  those  charged  in  the 
indictment.  But  the  law  of  England  does 
not  allow  one  crime  to  be  proved  in  order 
to  raise  a  probability  that  another  crime 
has  been  committed  by  the  perpetrator  of 
the  first.  The  evidence  which  was  re- 
ceived in  the  case  does  not  tend  to  show 
that  the  prisoner  knew  that  these  particu- 
lar goods  were  stolen  at  the  time  that  he 
received  them.  The  rule  which  has  pre- 
vailed in  the  case  of  indictments  for  utter- 
ing forged  bank-notes,  of  allowing  evi- 
dence to  be  given  of  the  uttering  of  other 
forged  notes  to  difterent  persons,  has  gone 
to  great  lengths,  and  I  should  be  unwill- 
ing to  see  that  rule  applied  generally  in 
the  administration  of  the  criminal  law. 
We  are  all  of  opinion  that  the  ev-idence 
admitted  in  this  case,  with  regard  to  the 
scienter,  was  improperly  admitted,  as  it 
afforded  no  ground  for  any  legitimate  in- 
ference in  respect  to  it.     The  conviction. 


98  LAW    OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

§  112.  To  show  the  jMce  ivhere  the  forgery  was  committed^  it  is 
competent  to  prove  that  the  instriimeut  was  found  in  the  prisoner's 
possession  in  such  place,  and  that  he  resided  there  ;  of  the  suffi- 
ciency of  which  the  Jury  will  judge. ^  And  if  the  instrument  bears 
date  at  a  certain  place,  and  it  is  proved  that  the  prisoner  was  there 
at  that  time,  this  is  sufficient  evidence  that  it  was  made  at  that 
place.2  But  where  a  forged  instrument  was  found  in  the  prisoner's 
possession  at  W.,  where  he  then  resided,  but  it  bore  date  at  S.,  at 
a  previous  time,  when  he  dwelt  in  the  latter  place,  this  was  held 
not  to  be  sufficient  evidence  of  the  commission  of  the  offence  in 
W.^  If  the  instrument  is  not  dated  at  any  place,  and  the  fact  of 
forgery  by  the  prisoner  is  proved,  and  that  he  uttered,  or  attempted 
to  utter  it  at  the  place  named  in  the  indictment,  this  is  evidence 
that  it  was  forged  at  that  place.*  If  a  letter,  containing  a  forged 
instrument,  be  put  into  the  post-office,  this  is  not  evidence  of  an 
uttering  at  that  place  ;  but  the  venue  must  be  laid  in  the  place 
where  the  letter  was  received.*^ 

§  113.  If  the  indictment  be  for  uttering  a  forged  bank-note, 
parol  evidence  is  admissible  to  show  that  the  person,  whose  name 
appears  on  the  note  as  president,  is  in  fact  the  president  of  that 
bank  ;  ^  but  it  is  not  necessary  to  prove  the  existence  of  the  bank, 
unless  it  be  described  in  the  indictment  as  a  bank  duly  incorpo- 
rated, or  an  intent  to  defraud  that  bank  be  alleged.^ 

therefore,  must  be  quashed.     And  see  Re-  and  fully  reviewed.      The  principle,   on 

gina    V.    Green,    3    Car.    &    Kir.    209."  which  this  point  was  decided  is,  that  the 

[Where  several  persons  were  indicted  for  offence  charged  was  a  felony,  to  which  the 

forging  a  check  on  a  hank,  it  was  held  ad-  act  of  consummation  was   indispensably 

missibTe  to  prove  that  previous  to  present-  necessary ;  the  attempt  to  commit  a  felony 

ing  the  check  the  respondents  had  agreed  being  of  itself,  and  without   consumma- 

to^procure  money  by  means  of  forged  pa-  tion,  only  a  misdemeanor.     But  where  an 

pers,  without  reference  to  any  particular  act  of  forgery  amounts  only  to  a  misde- 

bank.     State  v.  Morton,  27  Verm.  310.]  meanor,  as  the  attempt  to  commit  it  is  of 

1  Rex  V.  Crocker,  2  New  Rep.  87  ;  itself  a  misdemeanor,  it  is  conceived  that 
Russ.  &  Ry.  C.  C.  97 ;  Spencer's  case,  2  proof  of  putting  a  letter,  containing  the 
Leiirh,  751  •  ^^l**^  instrument,  into  the  post-ofhcc,  would 

2  The  State  r.  Jones,  1  McMullan,  236.  be  sufficient  to  support  a  charge  of  com- 

3  Rex  r.  Crocker,  2  New  Rep.  87  ;  Russ.  mitting  the  crime  at  that  i)lacc.  ^  See  Per- 
&  Rv.  C.  C.  97.  kins's  case,  Lewin,  C.  C.  1.50  ;  Supra,  §  2. 

*  Bland  v.  The  People,  3  Scam.  364.  »  The  State  v.  Smith,  5  Day,  175. 

5  The   People   v.    Rathbun,  21    Wend.  '  Commonwealth  v.  Smith,  6  S.  &  R. 

509,  527 -.541,  where  all  the  cases,  English  568;   The  People  v.  Peabody,  25  Wend, 

and  American,  ou  this  point,  are  collected  473. 


PART  v.]  HOMICIDE.  99 


HOMICIDE. 

[*§  114.  Homicide  defined. 

115.  Justifiable  homicide,  of  three  classes. 

116.  Excusable,  of  two  classes. 

117.  Homicide  necessarily  committed  in  defence  of  possession  of  one's  dwelling- 

house,  excusable. 

118.  Distinction  between  justifiable  and   excusable  homicide  not  important  in 

United  States. 

119.  Felonious  homicide,  either  manslaughter  or  murder. 

120.  Indictment  for  mansl.iughter,  how  differs  from  one  for  murder. 

121.  Fact  of  killing  and  criminal  culpability  of  prisoner,  sufficient  proof  of  man- 

slaughter. 

1 22.  Provocation  must  be  considerable  to  reduce  homicide  to  manslaughter 

123.  Killing  an  officer  executing  illegal  or  defective  process,  manslaughter. 

124.  Words  and  gestures,  not  sufficient  provocation. 

125.  Fatal  stroke  must  be  given  before  blood  has  time  to  cool. 

126.  Act  of  force  must  bear  some  reasonable  proportion  to  the  provocation  re- 

ceived. 

127.  Defence  of  provocation  may  be  rebutted  by  express  malice. 

128.  Involuntary  manslaughter  defined. 

129.  Causing  death  by  doing  a  lawful  act  in  an  improper  manner,  manslaughter. 

130.  Malice  aforethought,  essential  to  murder. 

131.  Corpus  delicti  must  be  first  proved. 

132.  Evidence  of  personal  acquaintances  who  have  seen  the  body  after  death  most 

satisfactory. 

133.  But  not  necessary,  if  circumstances  leave  no  reasonable  doubt. 

134.  Death  by  suicide,  accident,  or  natural  cause,  must  be  excluded  by  circum- 

stances proved. 

135.  In  case  of  death  by  poisoning,  proof  of  particular  poison  not  requisite. 

136.  Proof  of  birth  of  child  alive  necessary  to  support  charge  of  infanticide. 

137.  Circumstances  showing  that  prisoner  was  guilty  agent. 

138.  Deed  of  murder  need  not  be  committed  immediately  by  his  own  hand. 

139.  Mismanagement  of  wound  not  mortal  in  its  nature,  but  given  in  malice,  no 

excuse. 

140.  Mode  of  killing  not  material. 

141.  Proof  that  death   was   accelerated  by  an  artificial  cause  does  not  sustain 

charge  of  death  proceeding  from  that  cause. 

142.  Forcing  a  person  to  do  an  act  which  causes  his  death,  a  killing. 

143.  Must  be  proved  that  crime  was  committed  in  county  where  trial  is  had. 

144.  Proof  of  malice  aforethought  indispensable. 

145.  Malice  either  express  or  implied. 

146.  Malice  presumed  where  officer  of  justice  is  resisted  and  killed  in  execution 

of  his  office 


100  LAW   OF   EVIDENCE   IN    CRIMINAL   CASES.  [PART  V, 

§  147.    Gross  recklessness  of  human  life  proof  of  malice. 

148.  Drunkenness,  not  an  excuse  for  act  which  is  its  immediate  result. 

149.  Prisoner's  account  of  act,  related  immediately  after  it  happened,  admissible 

as  part  of  res  gestce.] 

§  114.   Homicide  is  "  the  killing  of  any  human  being. ^^     It  is  of 
three  kinds  :  —  1.  Justifiable  ;  —  2.  Excusable;  —  3.  Felonious. 

§  115.  1.  Justifiable  homicide  is  that  which  is  committed  either, 
1st,  by  unavoidable  necessity,  without  any  will,  intention,  or  desire, 
or  any  inadvertence  or  negligence  in  the  party  killing,  and  there- 
fore without  blame  ;  such  as,  by  an  officer,  executing  a  criminal, 
pursuant  to  the  death-warrant,  and  in  strict  conformity  to  the  law, 
in  every  particular  ;  —  or,  2dly,  for  the  advancement  of  public  jus- 
tice; as,  where  an  officer,  in  the  due  execution  of  his  office,  kills  a 
person  who  assaults  and  resists  him  ;  or,  where  a  private  person  or 
officer  attempts  to  arrest  a  man  charged  with  felony  and  is  resisted, 
and  in  the  endeavor  to  take  him,  kills  him ;  or,  if  a  felon  flee  from 
justice,  and  in  the  pursuit  he  be  killed,  where  he  cannot  otherwise 
be  taken  ;  or,  if  there  be  a  riot,  or  a  rebellious  assembly,  and  the 
officers  or  their  assistants,  in  dispersing  the  mob,  kill  some  of  them, 
where  the  riot  cannot  otherwise  be  suppressed  ;  or,  if  prisoners,  iii 
jail,  or  going  to  jail,  assault  or  resist  the  officers,  while  in  the 
necessary  discharge  of  their  duty,  and  the  officers  or  their  aids,  in 
repelling  force  by  force,  kill  the  party  resisting  ;  —  or,  3dly,  for  the 
prevention  of  any  atrocious  crime,  attempted  to  be  committed  by 
force  ;  such  as  murder,  robbery,  housebreaking  in  the  night-time, 
rape,  mayhem,  or  any  other  act  of  felony  against  the  person.^ 
But  in  such  cases  the  attempt  must  be  not  merely  suspected,  but 
apparent,  the  danger  must  be  imminent,  and  the  op])osing  force  or 
resistance  necessary  to  avert  the  danger  or  defeat  the  attempt.^ 

§  116.  2.  Excusable  homicide  is  that  which  is  committed  either, 
1st,  by  misadventure ;    (^per  infortunium ;)    which  is  where  one, 

1  4  Bl.  Comm.  178-180;  1  Russ.  on  ad  sc  venicntem  gladio  repulorit,  non  ut 
Crimes,  60.5 -670;  "Wharton's  Amor,  homicida  tcnctur;  quia  defensor  propria 
Trim.  L.iw,  298-403.  The  Homan  civil  salutis  in  nullo  peccassc  vidcter.  Cod.  lib. 
Inw  recognized  the  s.imc  principles.  Qui  9,  tit.  Ifi,  1.  .3.  In  the  cases  mentioned  in 
latroncm  (insidiatorem)  occiderit,  non  the  text,  if  the  homicide  is  committed  with 
trnctur,  utiqtie  si  alitor  periculum  efrii<j:erc  undue  precipitancy,  or  the  unjustitiable 
non  potest.  Inst.  lib.  4,  tit.  3,  §  2.  Fu-  use  of  a  deadly  weapon,  the  slayer  will  be 
rem  nocturnum  si  q\iis  occiderit,  ita  de-  culjjable.  See  Alison's  Crim.  Law  of  Scot- 
mum  impune  foret,  si  ])arcere  ei  sine  peri-  laud,  p.  100;  Id.  p.  132-139. 
culo  suo  non  jiotuit.  Diff-  lib.  48,  tit.  8,  -  United  States  v.  Wiltberger,  3  Wash. 
1.  9.  Qui  stujirum  sibi  vel  suis  per  vim  .515.  And  .see  The  States.  Rutherford,  1 
inferentem  occidit,  dimittendus.  Dip.  lih.  Hawks,  457  ;  The  State  v.  lloanc,  2  Dev. 
48,  tit.  8,  1.  1,  §  4.     Si  quis  percussorcra  58. 


PART  v.]  '  HOMICIDE.  101 

doing  a  laivful  act,  unfortunately  kills  another ;  as,  if  he  be  at 
work  with  a  hatchet,  and  the  head  thereof  flies  off  and  kills  a 
by-stander  ;  or  if  a  parent  is  correcting  his  child,  or  a  master  his 
apprentice  or  scholar,  the  bounds  of  moderation  not  being  ex- 
ceeded, either  in  the  manner,  the  instrument,  or  the  quantity  of 
punishment ;  or  if  an  officer  is  punishing  a  criminal,  within  the 
like  bounds  of  moderation,  or  within  the  limits  of  the  law,  and  in 
either  of  these  cases,  death  ensues  ;  ^  or,  2dly,  in  self-defence  ;  (s« 
defendendo ;)  which  is  where  one  is  assaulted,  upon  a  sudden 
ajffray,  and  in  the  defence  of  his  person,  where  certain  and  imme- 
diate suffering  would  be  the  consequence  of  waiting  for  the  assist- 
ance of  the  law,  and  there  was  no  other  probable  means  of  escape, 
he  kills  the  assailant.  To  reduce  homicide  in  self-defence  to  this 
degree,  it  must  be  shown  that  the  slayer  was  closely  pressed  by  the 
other  party,  and  retreated  as  far  as  he  conveniently  or  safely  could, 
in  good  faith,  with  the  honest  intent  to  avoid  the  violence  of  the 
assault.  The  Jury  must  be  satisfied  that,  unless  he  had  killed  the 
assailant,  he  was  in  imminent  and  manifest  danger  either  of  losing 
his  own  life,  or  of  suffering  enormous  bodily  harm.^  This  latter 
kind  of  homicide  is  sometimes  called  chance-medley,  or  chaud-med- 
ley,  words  of  nearly  the  same  import ;  and  closely  borders  upon 
manslaughter.  In  both  cases  it  is  supposed  that  passion  has 
kindled  on  each  side,  and  that  blows  have  passed  between  the 
parties ;  but  the  difference  lies  in  this,  —  that  in  manslaughter,  it 
must  appear,  either  that  the  parties  were  actually  in  mutual  com- 
bat when  the  mortal  stroke  was  given,  or,  that  the  slayer  was  not 
at  that  time  in  imminent  danger  of  death  ;  but  that  in  homicide 
excusable  by  self-defence  it  must  appear,    either  that  the  slayer 

1  4  Bl.  Comra.  182;  I  Russ.  on  Crimes,  was  to  kill  his  adversary.  United  States 
657  -  660.  V.  Mingo,  2  Curt.  C.  C.  1.]     [*  The  bene- 

2  4  Bl.  Comm.  182 ;  1  Uuss.  on  Crimes,  fit  of  a  doubt  whether  the  homicide  is  jus- 
660,  661  ;  Wharton's  Am.  Crira.  Law,  tifiable  or  not  is  to  be  given  to  the  pris- 
385-397.  Qui,  cum  aliter  tueri  se  non  oner.  People ».  Arnold,  15  Cal.  476.  See 
possunt,  damni  culpam  dederint,  innoxii  also  People  v.  Gibson,  17  Cal.  283.  It  is 
sunt.  Vim  enim  vi  defendere,  omnes  leges  the  duty  of  the  court,  upon  common  prin- 
omniaque  jura  permittant.  Dig.  lib.  9,  ciples  of  humanity  and  justice,  first,  to  pro- 
tit.  2,  1.  45,  §  4.  Is,  qui  aggressorem  vel  nounce  the  criminal  innocent  until  he  is 
quemcnnque  alium  in  dubio  vita  discrim-  proved  guilty ;  and,  secondly,  after  he  is 
ine  constitutus  occiderit,  nullam  ob  id  fac-  shown  to  have  committed  a  homicide,  to 
tum  calumniam  metuere  debet.  Cod.  lib.  look  for  every  excuse  which  may  reduce 
9,  tit.  16,  1.  2.  [The  law  does  not  demand  the  guilt  to  the  lowest  point  consistent 
of  the  accused  the  same  deliberate  judg-  with  the  facts  proved.  State  v.  McDon- 
ment  which  the  Jury  can  exercise  in  re-  nell,  32  Vt.  538.  But  an  expert's  doubts 
viewing  the  circumstances  of  the  killing ;  as  to  a  defendant's  sanity  are  not  legal 
but  only  that  he  should  have  actually  and  proof  of  his  insanity,  and  therefore  are 
reasonably  lielicved  that  the  only  way  to  inadmissible.  Sanchez  y.  People,  22  N.  Y. 
protect   himself   from   immediate   danger  147.] 


102  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

had  not  begun  to  fight,  or  that,  having  begun,  he  endeavored  to 
decline  any  further  struggle,  and  afterwards,  being  closely  pressed 
by  his  antagonist,  he  killed  him  to  avoid  his  own  destruction.^ 
Under  this  excuse  of  self-defence,  the  principal  civil  and  natural 
relations  are  comprehended  ;  and  therefore,  a  master  and  servant, 
parent  and  child,  and  husband  and  wife,  killing  an  assailant,  in 
the  necessary  defence  of  each  other  respectively,  are  excused.''^ 

§  117.  Homicide  is  also  excusable,  when  unavoidably  committed 
in  defence  of  the  possession  of  one's  divelling-house,  against  a  tres- 
passer, who,  having  entered,  cannot  be  put  out  otherwise  than  by 
force  ;  and  no  more  force  is  used,  and  no  other  instrument  or  mode 
is  employed,  than  is  necessary  and  proper  for  that  purpose.^  So, 
if  in  a  common  calamity,  two  persons  are  reduced  to  the  dire  alter- 
native, that  one  or  the  other  or  both  must  certainly  perish,  as, 
where  two  shipwrecked  persons  are  on  one  plank,  which  will  not 
hold  them  both,  and  one  thrusts  the  other  from  it,  so  that  he  is 
drowned,  the  survivor  is  excused.* 

§  118.  The  distinction  between  justifiable  and  excusable  homi- 
cide was  formerly  important,  inasmuch  as  in  the  latter  case,  the 
law  presumed  that  the  slayer  was  not  wholly  free  from  blame ;  and 
therefore  he  was  punished  by  forfeiture  of  goods,  at  least.  But  in 
the  United  States,  this  rule  is  not  known  ever  to  have  been  recog- 
nized ;  it  having  been  the  uniform  practice  here,  as  it  now  is  in 
England,  where  the  homicide  does  not  rise  to  the  degree  of  man- 
slaughter, to  direct  an  acquittal.^ 

§  119.  3.  Felonious  Homicide  is  of  two  kinds,  namely,  man- 
slaughter and  murder  ;  the  difference  between  which  consists  prin- 
cipally in  this,  that  in  the  latter  there  is  the  ingredient  of  malice, 
while  in  the  former  there  is  none  ;  or,  as  Blackstone  expresses  it, 
manslaughter,  when  voluntary,  arises  from  the  sudden  heat  of  the 
passions ;  murder  from  the  wickedness  of  the  heart.  Manslaugh- 
ter is  therefore  defined  to  be  "  the  unlawful  killing  of  another^ 

1  4  Bl.  Comm.  184  ;  1  Rnss.  on  Crimes,  defence  of  an  injury  done  bv  himself  he  is 

661  ;    The  State  v.  Hill,  4  Dev.  &  Batt.  guilty  of  mansiauy:hter  at  "least.     People 

491.  r.  Lamb,  17  Cal.  323.] 

-  4  Bl.  Comm.  186  ;  1  Hale,  P.  C.  448.  *  4  Bl.  Comm.  186.     And  see  Holmes's 

3  1   Hale,  P.  C.  485,  486 ;    1  Rnss.  on   -  case,     where     several     passengers     were 

Crimes,  662,  604 ;   cites  Meade's  case,  1  thrown   over  from   the   overloaded   long- 

Lewin,  C.  C.  1R4  ;  Child's  case,  2  Lcwin,  boat  of  a  foundered  ship,  to  save  the  lives 

C.  C.  214;  Hinchcliff's  case,  1  Lcwin,  C.  of  the  others;  in  which  this  doctrine  was 

C.  161.     [*  A  man  cannot  justify  killinf;  very  fully  and  ably  discussed.     Wharton's 

another  by  pretence  of  necessity,  unless  he  Am.  Crim.  Law,  p.  397. 
were  wholly  without  fault  in  bfinpin-;  that         ^  4  Bl.  Comm.  188  ;  2  Inst.  148,  315. 
necessity  upon  himself;    if  he  kill  one  in 


PART  v.]  HOMICIDE.  103 

without  malice^  either  express  or  implied.'"  ^  And  hence  every  in- 
dictment for  wilful  homicide,  in  which  the  allegation  of  malice  is 
omitted,  is  an  indictment  for  manslaughter  only.  So,  on  the  trial 
of  an  indictment  for  murder,  if  there  is  no  sufficient  proof  of 
malice  aforethought,  and  the  act  of  killing  being  proved,  is  not 
justified  nor  excused,  the  Jury  must  return  a  verdict  for  man 
slaughter.  As  this  offence  is  supposed  to  have  been  committed 
without  malice,  so  also  it  must  have  been  without  premeditation  ; 
and  therefore  there  can  be  no  accessories  before  the  fact.  Thus,  it 
is  said  that,  if  A.  is  charged  with  murder,  and  B.  is  charged  as 
accessory  before  the  fact  (and  not  as  present,  aiding  and  abetting, 
for  such  are  principals),  and  A.  is  found  guilty  of  manslaughter 
only,  B.  must  be  altogether  acquitted. ^  But  if  A.  is  charged  with 
murder,  and  B.  is  charged  with  receiving,  harboring,  and  assisting 
him,  well  knowing  that  he  had  committed  the  murder  ;  and  A.  be 
found  guilty  of  manslaughter  only  ;  B.  may  be  found  guilty  of 
being  accessory  after  the  fact  to  the  latter  offence. ^ 

§  120.  The  indictment  for  manslaughter  is  in  the  same  form  with 
an  indictment  for  murder,  hereafter  to  be  stated,  except  that  the 
allegation,  "  of  his  malice  aforethought,"  and  the  word  "  murder," 
are  omitted.  The  substance  of  the  charge,  therefore,  so  far  as  the 
proof  is  concerned,  is,  that  the  prisoner  (describing  him),  at  such 
a  time  and  place,  feloniously  and  wilfully  assaulted  the  deceased 
(describing  him),  and  killed  him  in  the  particular  manner  therein 
set  forth.  The  allegations  of  diabolical  motive  in  the  slayer,  and 
that  the  deceased  was  in  the  peace  of  God  and  the  State,  and 
that  the  offence  was  committed  with  force  and  arms,  though 
usually  inserted,  are  superfluous,  and  not  necessary  to  be  proved.* 
And  the  time  of  any  homicide  is  not  material  to  be  precisely  proved 
if  it  appear,  both  on  the  face  of  the  indictment,  and  also  by  the 
evidence,  that  the  death  happened  within  a  year  and  a  day  after 
the  stroke  was  given,  or  the  poison  administered,  or  other  wrong- 
ful act  done,  which  is  supposed   to  have  occasioned  the  death. 

1  4  Bl.  Comm.  191  ;  1  Hale,  P.  C.  466 ;  ^  r^x  v.  Greenacre,  8  C.  &  P.  35. 
Commonwealth  v.  "Webster,  5  Cush.  304.  ■*  Heydon's  case,  4  Rep.  41,  pi.  5 ;  3  Chit- 

2  1  Hale,  P.  C.  450;  Blithe's  case,  4  ty,  Crim.  Law,  751,  n. ;  2  Hale,  P.  C. 
Rep.  43?),  pi.  9.  [Evidence  that  a  party  186,  187;  Commonwealth  t.  Murphy,  6 
is  present,  aiding  and  abetting  in  a  mur-  Monthly  Law  Reporter,  N.  S.  460. 
der,  will  support  an  indictment  charging  [*  One  indicted  for  manslaughter  may, 
him  with  having  committed  the  act  with  on  trial,  be  convicted  for  an  assault  and 
his  own  hand.  Commonwealth  v.  Chap-  battery,  though  the  indictment  contain  no 
man,  11  Cu.--h.  422.  See  also  Regina  v.  count  specially  charging  the  minor  of- 
Gaylor,  7  Cox,  253.]  fence.     State  v.  Scott,  24  Vt.  127.] 


104  LAW   OF   EVIDENCE   IN    CRIMINAL   CASES.  [PART  V. 

The  day  is  added  to  the  year,  in  order  to  put  the  completion  of  a 
full  year  beyond  all  doubt,  which  might  arise  from  the  mode  of 
computation  by  including  or  excluding  the  day  of  the  stroke  or 
infliction  ;  and  because,  as  Lord  Coke  has  remarked,  in  case  of 
life  the  rule  of  law  ought  to  be  certain  ;  and  if  the  death  did  not 
take  place  within  the  year  and  day,  the  laiv  draws  the  conclusion 
that  the  injury  received  was  not  the  cause  of  the  death ;  and 
neither  the  Court  nor  Jury  can  draw  a  contrary  one.^ 

§  121.  Where  the  crime  of  manslaughter  only  is  charged,  the 
proof  of  the  offence,  on  the  part  of  the  prosecution,  is  by  proving 
the  fact  of  killing,  with  such  circumstances  as  show  criminal  culpa- 
bility on  the  part  of  the  prisoner.  And  the  defence  consists  either 
in  a  denial  of  the  principal  fact,  or  in  a  denial  of  all  culpability, 
supported  by  the  proof  of  circumstances,  reducing  the  fact  of  kill- 
ing to  the  degree  of  excusable  or  justifiable  homicide.^  But  the 
distinction  between  murder  and  manslaughter  most  frequently 
arises  where  the  indictment  is  for  murder,  and  the  evidence  on  the 
part  of  the  prisoner  is  directed  to  reducing  the  act  to  the  degree  of 
manslaughter  only.  The  cases  on  this  subject  are  of  two  classes, 
the  offence  being  either  voluntary  or  involuntary.  Voluntary  man- 
slaughter is  where  one  kills  another  in  the  heat  of  blood  ;  and  this 
usually  arises  from  fighting  or  from  provocation.  In  the  former 
case,  in  order  to  reduce  the  crime  from  murder  to  manslaughter,  it 
must  be  shown  that  the  fighting  was  not  preconcerted,  and  that 
there  was  not  sufficient  time  for  the  passion  to  subside  ;  for  in  the 
case  of  a  deliberate  fight,  such  as  a  duel,  the  slayer  and  his  second 
are  murderers.-^  And  though  there  were  not  time  for  passion  to 
subside,  yet  if  the  case  be  attended  with  such  circumstances  as  in- 
dicate malice  in  the  slayer,  he  will  be  guilty  of  murder.  Thus,  if 
the  slayer  provide  himself  with  a  deadly  weapon  beforehand,  in 
anticipation  of  the  fight,  and  not  for  mere  defence  of  his  person 
against  a  felonious  assault ;  *  or  if  he  take  an  undue  advantage  of 
the  other  in  the  fight ;  ^  or  if,  though  ho  were  in  the  heat  of  pas- 
sion, he  should  designedly  select  out  of  several  weapons  equally  at 

1  3  Inst.  5^  ;  The  State  v.  Orrell,  1  tor.  Commonwealth  v.  M'Pike,  3  Cush. 
Dev.  1.39,  141  ;  2  Hale,  P.  C.  179.  181. 

2  It  is  no  defence  to  an  indictment  for  "  1  Rnss.  on  Crimes,  531  ;  1  Hale,  P. 
manslaupfhter,  that  the  homicide  a])pears  C.  452,  4.").3. 

by  the  evidence  to  have  been  committed  *  Ilciiina  ».  Smith,  8  C.  &  P.  100;  Rex 

with  malice  afon^thoiijrht,  and  is  therefore  r.   An<ier.son,    1    Knss.    on    ('rimes,    5.31  ; 

murder;  but  tlie  defendant  may  be  prop-  Kex  v.  Whitcley,  1  Lewin.  C.  C.  173. 

erly  convicted  of  the  crime  of  manslaugh-  ^  Rex  v.  Kessel,  1  C.  &  P.  437  ;  Post.  295. 


PART  v.]  HOMICIDE.  105 

hand,  that  which  alone  is  deadly,  it  is  murder.^  Where,  in  a 
fight,  the  victor  had  followed  up  his  advantage  with  great  fury, 
giving  the  mortal  blows  after  the  other  party  was  down,  and  had 
become  unable  to  resist,  it  was  still  held  to  be  only  manslaughter.^ 
§  122.  Where  homicide  is  committed  upon  provocation,  it  must 
appear  that  the  provocation  was  considerable,  and  not  slight  only, 
in  order  to  reduce  the  offence  to  manslaughter  ;  and  for  this  pur- 
pose the  proof  of  reproachful  words-,  how  grievous  soever,  or  of 
actions  or  gestures  expressive  of  contempt  or  reproach,  without  an 
assault,  actual  or  menaced,  on  the  person,  will  not  be  sufficient  if 
a  deadly  weapon  be  used.  But  if  the  fatal  stroke  were  given  by 
the  hand  only,  or  with  a  small  stick,  or  other  instrument  not 
likely  to  kill,  a  less  provocation  will  suffice  to  reduce  the  offence  to 
manslaughter.^  Thus,  the  killing  has  been  held  to  be  only  man- 
slaughter, though  a  deadly  weapon  was  used,  where  the  provocation 
was  by  pulling  the  nose  ;  *  purposely  jostling  the  slayer  aside  in 
the  highway  ;  ^  or  other  actual  battery.^  So,  where  a  husband 
caught  a  man  in  the  act  of  adultery  with  his  wife,  and  instantly 
killed  either  or  both  of  them.^  And  where  a  boy,  being  beaten  by 
another  boy,  ran  home  to  his  father,  who,  seeing  him  very  bloody, 
and  hearing  his  cries,  instantly  took  a  rod  or  small  stick,  and  run- 
ning to  the  field  three  quarters  of  a  mile  distant,  struck  the  ag- 
gressor on  the  head,  of  which  he  died;  this  was  ruled  manslaughter 
only,  because  it  was  done  upon  provocation  by  the  injury  to  his 
son,  and  in  sudden  heat  and  passion.^ 

1  1  Leach,  151;  1  East,  P.  C.  245;  to  produce  a  degree  of  exaspei-ation  equal 
roster,  294,  295  ;  Rex  v.  Anderson,  supra ;  to  what  would  be  caused  by  a  violent 
Rex  w.  Whiteley,  sM/)ra ;  1  Russ  on  Crimes,  blow.  Regina  v.  Sherwood,  1  Car.  & 
531.  ffir.  556,  per  Pollock,  C.  B. 

2  Rex  V.  Aves,  Russ.  &  Ry.  166.     But  ^  Rex  v.  Stedman,  Foster,  292. 

it  has  been  thought  that  where  the  manner  "^  Maddy's  case,  1  Vent.  156 ;  T.  Raym. 
of  the  fight  was  deadly,  as,  "  an  up-and-  212 ;  S.  C.  nom.  Manning's  case,  where 
down  fight,"  if  death  ensued,  it  would  be  the  Court  is  reported  to  have  said  that 
murder.  Rex  v.  Thorpe,  1  Lewin,  C.  C.  "  there  could  not  be  a  greater  provocation 
171.  [In  Maiiw,  upon  an  indictment  than  this."  J.  Kely.  137.  See  also  The 
charging  an  assault  with  intent  to  mur-  People  v.  Ryan,  2  Wheeler,  C.  Cass.  54; 
der,  the  Jury  may  find  an  assault  with  in-  Regina  v.  Pishcr,  8  C.  &  P.  182;  Pear- 
tent  to  kill,  but  not  to  murder.  State  v.  son's  case,  2  Lewin,  C.  C.  216;  Alison's 
Waters,  39  Maine,  54.  See  also  The  Crim.  Law  of  Scotland,  p.  113;  Regina 
People  V  Johnson,  1  Parker,  C.  R.  291,  v.  Kelly,  2  C.  &  K.  814;  [State  i;.  Sam- 
and  The  People  v.  Shaw,  lb.  327.]  uel,  3  Jones  (Law),  74.] 

3  Foster,  290,  291  ;  Infra,  §  124;  Unit-  »  Royley's  case,  Godb.  182;  Cro.  Jac. 
ed  States  i;.  Wiltberger,  3  Wash.  515.  296;    12   Rep.    87;    1    Hale,  P.   C.    453; 

*  J.  Kely.  135.  Foster,  294,  295,  S.  C.     Coke  calls  the  in- 

^  Lanure's  case,  1  Hale,  P.  C.  455.     If  strument  used  in  this  case,  a  cudgel.     God- 

the  provocation  by  a  blow  be  too  slight  to  bolt  says  it  was  a  rod.     Lord   Hale  terms 

reduce   the    killing  to    manslaughier,  yet  it  a  staff.     Croke  terms  it  a  Hide  cudgel; 

it  has   been   thought  suffici.'nt,  if  accom-  and  Lord    Kaymond  observes,  that  it  was 

panied  by  words  and  gestures  calculated  a  weapon  "  from  which  no  such  fatal  event 


106 


LAW   OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V, 


§  123.  Another  kind  of  provocation  sometimes  arises  in  the  exe- 
cution of  process.  For  though  the  kilUng  of  an  officer  of  justice, 
while  in  the  regular  execution  of  his  duty,  knowimg  him  to  be  an 
officer,  and  with  intent  to  resist  him  in  such  exercise  of  duty, 
is  murder  ;  the  law  in  that  case  implying  malice  ;  yet  where  the 
process  is  defective  or  illegal,  or  is  executed  in  an  illegal  manner, 
the  killing  is  only  manslaughter,  unless  circumstances  appear  to 
show  express  malice  ;  and  then  it  is  murder.^  Thus,  the  killing 
will  be  reduced  to  manslaughter,  if  it  be  shown  in  evidence  that  it 
was  done  in  the  act  of  protecting  the  slayer  against  an  arrest  by  an 
officer  acting  beyond  the  limits  of  his  precinct ;  ^  or,  by  an  assistant 
not  in  the  presence  of  the  officer ;  ^  or,  by  virtue  of  a  warrant 
essentially  defective  hi  describing  either  the  person  accused  or  the 
offence  ;  ^  [*or,  where  the  officer  had  no  warrant,  although  he  knew 


could   reasonably  be  expected."      2   Ld. 
Raym.    1498.      Whatever    it    may   have 
been,  all  agree  that  it  was  not  a  lethal 
or  deadly  wea])on,  from  the  use  of  which 
malice  miuht  have  been  presumed ;   and 
therefore     the      killing     was     but     man- 
slaughter,   in    the    heat   of    passion,    and 
upon   great   provocation.      [Upon  an  in- 
dictment for  murder,   where  it  appeared 
that  the  deceased  attacked  the  prisoner  for 
the  purj)0se  of  arresthig  or  assaulting  him 
unlawfully,    tliat    he   was   armed   with   a 
hatchet  when    he   made   the   attack,   and 
that   the   prisoner  was  found   to   have  a 
wound  on  tlie  head  evidently  made  with 
a  hatchet,  it  is  competent  for  the  prisoner 
to  show  that  the  deceased  had  threatened 
him   during   the   day   before   the    attack, 
even  though  the  prisoner  did  not  know 
of  the  threats  at  the  time  he  was  attacked. 
To  justify  his  killing  his  opponent  in  self- 
defence,  it  is  not  necessary  to  prove  that 
the  assailant  actually  intended  to  kill  him 
or  do  him  great  bodily  harm  ;  it  is  sufrt- 
cient  if  it  ajipear  tliat  lie  was  attacked  in 
such  a  way  as  to  induce  a  reasonable  and 
well-grouiided  belief  that  he  was  in  actual 
danger  of  losing  his  life,  or  of  suffering 
great   bodily   harm.      Campbell    v.    The 
People,    16    111.    17;     Cornelius    v.    The 
Commonwealth,     1.5     B.     Monroe,     .546; 
United  States  v.  Mingo,  2  Curtis,  C.  C. 
1  ;    and  see  Commonwealth   v.  Wilson,   1 
Gray,  337.     On  a  trial  tor  murder,  after 
an  assault  by  the  deceased  upon  a  pris- 
oner, evidence  of  the  (juarrelsome  char- 
acter ami  great  strength  of  the  deceased  is 
inadmissible  on  the  question  of  jirovoca- 
tion  or  fear  of  bodily   harm.     Common- 
wealth V.  liilliard,  2  Gr.iy,  294.] 

1  Foster,  311  ;  1  llnss.  on  Crimes,  617  ; 
Commonwealth  v.   Drew,   4    Mass.    395, 


396.  If  a  felony  has  actually  been  com- 
mitted, any  man  upon  fresh  pursuit,  or 
hue  and  cry,  may  arrest  the  felon,  without 
warrant.  But  suspicion  of  the  felony  will 
not  be  enough  to  justify  the  arrest.  The 
felony  must  have  been  committed  in  fact. 
But  if  a  felony  be  committed,  and  one  is 
upon  reasonable  ground  suspected  of  being 
tlie  felon,  and  thereupon  is  freshly  pursued 
by  a  private  individual  without  warrant, 
and  is  killed  in  the  attempt  to  arrest  him,  it 
is  only  manslaughter.  An  officer,  however, 
having  reasonable  ground  to  suspect  that 
a  felony  has  been  committed,  may  arrest  and 
detain  the  supposed  felon  ;  which  a  pri- 
vate citizen  cannot  lawfully  do.  Beck- 
with  V.  Philby,  6  B.  &  C.  635,  per  Ld. 
Tenterden;  2  Hale,  P.  C.  76-80;  1 
liuss.  on  Crimes,  593-595;  Common- 
wealth V.  Carey,  4  Law  Rep.  169,  173,  N. 
S.  And  see  Price  v.  Seeley,  10  CI.  &  Fin. 
28 ;  1  Leading  Crim.  Cases,  143,  and  note; 
Derecourt  v.  Corbishley,  32  Eng.  Law  & 
Eq.  R.  106  ;  Rohan  v.  Sawin,  5  Cush, 
281  ;  Broughton  v.  Jackson,  11  Eng.  Law 
&  Eq.  R.  388;  Thomas  v.  Russell,  25 
Eng.  Law  &  Eq.  R.  550 ;  Samuel  v. 
Payne,  1  Doug.  359;  I  Leading  Crim. 
Cases,  157;  Ledwith  v.  Catchpole,  Cald. 
291  ;  1  Leading  Crim.  Cases,  158,  and 
note ;  Regina  v.  Walker,  25  Eng.  Law  & 
E(i.  R.  589  ;  The  State  v.  Weed,  1  Foster 
(N.  H.),  262;  1  Leading  Crim.  Cases, 
164,  and  note. 

^  1  Hale,  P.  C.  459;  Rex  v.  Mead,  2 
Stark.  R.  205. 

3  Rex  V.  Patience,  7  C.  &  P.  795 ;  Rex 
T.  Whalley,  Id.  245. 

*  Rex  V.  Hood,  1  Moody,  C.  C.  281; 
Foster,  312;  1  Hale,  P.  C.  457;  Hoye  v. 
Bush,  1  Man.  &  Grang.  775;  2  Scott,  N. 
R.  86 ;   The  State  v.  Weed,  1  Foster,  (N. 


PART  v.]  HOMICIDE.  107 

that  one  had  been  issued,  but  said  that  he  had  one,  and  refused  to 
give  any  explanation  whatever ;  ^J  or,  where  the  party  had  no  no- 
tice, either  expressly,  or  from  the  circumstances  of  the  case,  that  a 
lawful  arrest  was  intended  ;  but,  on  the  contrary,  honestly  believed 
that  his  liberty  was  assailed  without  any  pretence  of  legal  author- 
ity ;  ^  or,  where  the  arrest  attempted,  though  for  a  felony,  was  not 
only  without  warrant,  but  without  hue  and  cry,  or  fresh  pursuit ; 
or,  being  for  a  misdemeanor  only,  was  not  mude  flagrante  delicto  ;^ 
or,  where  the  party  was,  on  any  other  ground,  not  legally  liable  to 
be  arrested  or  imprisoned.^  So,  if  the  arrest,  though  the  party 
were  legally  liable,  was  made  in  violation  of  law,  as,  by  breaking 
open  the  outer  door  or  window  of  the  party's  dwelling-house,  on 
civil  process  ;  for  such  process  does  not  justify  the  breaking  of  the 
dwelling-house,  to  make  an  original  arrest ;  or,  by  breaking  the 
outer  door  or  window,  on  criminal  process,  without  previous  notice 
given  of  his  business,  with  demand  of  admission,  or  something 
equivalent  thereto,  and  a  refusal.^ 

§  124.  But  the  jyroofs  of  provocation,  in  order  to  reduce  the 
act  of  killing  to  the  degree  of  manslaughter,  must,  as  we  have 
seen,  be  by  evidence  of  something  more  than  words  or  gestures  ;  for 
these,  however  opprobrious  and  irritating,  are  not  sufficient  in  law 
to  free  the  slayer  from  the  guilt  of  murder,  if  the  person  was 
killed  with  a  deadly  weapon,  or  there  be  a  manifest  intent  to  do 
him  some  great  bodily  harm.  But  if,  upon  provocation  by  words 
or  gestures  only,  the  party,  in  the  heat  of  passion,  intended  merely 
to  chastise  the  insolence  of  the  other,  by  a  box  on  the  ear,  or  a 
stroke  with  a  small  stick  or  other  weapon  not  likely  to  kill,  and 
death  accidentally  ensued,  this  would  be  but  manslaughter.^  And 
it  seems  that  if,  upon  provocation  by  words  only,  the  party  pro- 
voked should  strike  the  other  a  blow  not  mortal,  which  is  re- 
turned by   the   other,  and   a   fight  thereupon  should   ensue,  in 

H.),  262  ;  1  Leading  Crim.  Cases,  164,  and  396 ;  United  States  v.  Travers,  2  Wheeler, 

note.  Cr.  Cas.  495,  509  ;  Rex  v.  Corbett,  4  Law 

1  [*  Drennan  v.  People,  10  Mich.  169.]  Rep.  369  ;  Rex  v.  Thompson,  1  Moody,  C. 

2  1  Hale,  P.  C.  470.  And  see  Buck-  C.  80 ;  Rex  v.  Gillow,  Id.  85 ;  1  Lewin,  C. 
ner's  case.  Sty.  467  ;  J.  Kely.  136 ;  1  Russ.  C.  57  ;  Regina  v.  Phelps,  Car.  &  Marsh, 
on  Crimes,  623;    Rex  v.  Withers,  1  East,  180,  186. 

P.  C.  233 ;  Rex  v.  Howarth,  1  Moody,  C.  °  Foster,  320.     Whether  a  previous  de- 

C.  207.  mand    be   necessary   in    cases    of  felony, 

3  1  Russ.  on  Crimes,  593-595,  598;  1  giicere;  and  see  Launock  v.  Brown,  2  B.  & 
Hale,  P.  C.  4G3  ;  Rex  v.  Curvan,  1  Moody,  Aid.  592. 

C.  C.  132 ;  Rex  v.  Curran,  3  C.  &  P.  397 ;         «  Foster,   290,    291 ;    Watts  v.  Brains, 

Commonwealths.  Carev,  4  Law  Rep.  170,  Cro.  El.  778;   J.  Kely.  130,  131 ;    1  Hale, 

N.  S.  "  P.  C.  455 ;  1  Russ.  on  Crimes,  580  ;  Supra, 

*  Commonwealth  v.  Drew,  4  Mass.  395,  §  122. 


108  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES.  [PART  V. 

which  the  party  first  provoked  should  kill  the  other,  this  also 
would  be  but  manslaughter.^  So,  if  the  words  were  words  of 
menace  of  bodily  harm,  accompanied  by  some  outward  act  show- 
ing an  intent  immediately  to  do  the  menaced  harm,  this  would 
be  a  sufficient  provocation  to  reduce  the  killing  to  manslaugh- 
ter.2 

§  125.  In  all  these  cases  of  voluntary  homicide,  upon  provoca- 
tion, and  in  the  heat  of  blood,  it  must  appear  that  the  fatal  stroke 
was  given  before  the  passion,  originally  raised  by  the  provocation, 
had  time  to  subside,  or  the  blood  to  cool ;  for  it  is  only  to  human 
frailty  that  the  law  allows  this  indulgence,  and  not  to  settled  ma- 
lignity of  heart.  If,  therefore,  after  the  provocation,  however 
great  it  may  have  been,  there  were  time  for  passion  to  subside,  and 
for  reason  to  resume  her  empire  before  the  mortal  blow  was  struck, 
the  homicide  will  be  murder.^  And  whether  the  time  which 
elapsed  between  the  provocation  and  the  stroke  were  sufficient  for 
that  purpose,  is  a  question  of  law  to  be  decided  by  the  Court ;  the 
province  of  the  Jury  being  only  to  find  what  length  of  time  did  in 
fact  elapse.* 

§  126.  It  is  further  to  be  observed,  that  in  cases  of  homicide 
upon  provocation  or  in  sudden  fight,  if  there  be  evidence  of  actual 
malice,  the  offence,  as  we  shall  hereafter  see,  will  amount  to  mur- 
der. It  must  therefore  appear  that  the  chastisement  or  act  of  force 
intended  on  the  part  of  the  slayer,  bore  some  reasonable  jjroportion 
to  the  provocation  received,  and  did  not  proceed  from  brutal  rage 
or  diabolical  malignity.  Proof  of  great  provocation  is  requisite  to 
extenuate  the  offence,  where  the  killing  was  by  a  deadly  weapon, 
or  by  other  means  likely  to  produce  death ;  but  if  no  such 
weapon  or  means  were  used,  a  less  degree  of  provocation  will  suf- 
ficc.'^  Thus,  while  the  prisoner,  who  was  a  soldier,  was  struck  in 
the  face  with  an  iron  patten,  and  thereupon  killed  the  assailant 

1  Morlcy's  case,  1  Hale,  P.  C.  456 ;  Lynch,  5  C.  &  P.  324,  and  by  Tindal,  C. 
J.  Kelv.  55,  130;  1  Kuss.  on  Crimes,  J.,  in  Rex  v.  Ilayward,  6  C.  &  P.  157. 
580.      '  [*  The  act  must  he  done  when  reason  is 

2  1  Hale,  P.  C.  456  ;  1  East,  P.  C.  233 ;  disturbed,  or  obscured  by  passion,  to  an 
1  Russ.  on  Crimes,  580.  And  sec  Mon-  extent  whicli  inujht  render  ordinary  men 
roe's  ease,  5  Geor;,'ia,  85.  of  fair  averas^e   disposition   liable   to  act 

8  Rex   V.   Oneby,   2   Ld.  Ravra.  1493-  rashly,  without  reflection,  and  from   pas- 

1496  ;    Foster,   290  ;    1    Hale,    P.  C.  453  ;  sion  rather  than  from  judgment ;  and  oidy 

Rex  V.  Thomas,  7  C.  &  P.  817.  in  very  clear  cases  mijjht  the  court,  i)er- 

*  2  Ld.   Itavm.  1493.     And  so  held  in  haps,  undertake  to  decide  these  questions 

Regina  v.  Fislicr,  8  C.  &  P.  182,  bv  Park,  witliout  connnittiug  error.     Maher  v.  Peo- 

J.,  Parke,    B.,    and   Mr.    Recorder  Law.  pie,  10  Mich.  212.] 

Both  questions  had  i)rcviously  been  left  to         ^  Foster,  291;    1  Hale,  P.  C.  454;    I 

the  Jury,   by   Ld.    Teuterdcu,    in  Rex  v.  Russ.  on  Crimes,  581. 


TAUT  v.]  HOMICIDE.  109 

with  his  sword,  it  was  held  only  manslaughter.^  So,  where  a 
pickpocket,  caught  in  the  fact,  was  thereupon  thrown  into  a  pond 
by  way  of  punishment,  and  was  unintentionally  drowned,  this  was 
ruled  to  be  manslaughter .^  And  if  one  should  find  another  tres- 
passing on  his  land  by  cutting  his  wood  or  otherwise,  and  in  the 
first  transport  of  passion  should  beat  him  by  way  of  chastisement 
for  the  offence,  and  unintentionally  kill  him,  no  deadly  weapon 
being  used,  it  would  be  but  manslaughter.^  But  if  the  provoca- 
tion be  resented  in  a  brutal  and  ferocious  manner,  evincive  of  a 
malignant  disposition  to  do  great  mischief,  out  of  all  proportion  to 
the  offence,  or  of  a  savage  disregard  of  human  life,  the  killing  will 
be  murder.  Such  was  the  case  of  the  park-keeper,  who,  finding  a 
boy  stealing  wood  in  the  park,  tied  him  to  a  horse's  tail  and  beat 
him,  whereupon  the  horse  running  away,  the  boy  was  killed.^  So, 
in  the  case  of  the  trespasser  cutting  wood  as  above  mentioned,  if  the 
owner  had  knocked  out  his  brains  with  an  axe  or  hedge  stake,  or 
had  beaten  him  to  death  with  an  ordinary  cudgel,  in  an  outrageous 
manner,  and  beyond  the  bounds  of  sudden  resentment,  it  would 
have  been  murder  ;  these  circumstances  being  some  of  the  genu- 
ine symptoms  of  the  mala  mens,  the  heart  bent  on  mischief,  which 
enter  into  the  true  notion  of  malice,  in  the  legal  sense  of  that 
word.^ 

§  127.  The  defence  of  provocation  may  he  rebutted,  by  proof  that 
the  provocation  was  sought  for  and  induced  by  the  prisoner  him- 
self, in  order  to  afford  an  opportunity  to  wreak  his  malice  ;  or,  by 
proof  of  express  malice,  notwithstanding  the  provocation  ;  or,  that 
after  it  was  given  there  was  sufficient  time  for  the  passion  thereby 
excited  to  subside  ;  or,  that  the  prisoner  did  not  in  fact  act  upon 
the  provocation,  but  upon  an  old  subsisting  grudge.^ 

§  128.  Livoluntary  manslaughter  is  where  one,  doing  an  unlaw- 
ful act,  not  felonious  nor  tending  to  great  bodily  harm,  or  doing  a 
lawful  act,  without  proper  caution  or  requisite  skill,  undesignedly 

1  Stedman's  case,  Foster,  292.  &  P.  157;    1  East,  P.  C.  239;   Regina  v. 

2  Rex  V.  Fray,  1  East,  P.  C.  236;  1  Kirkham,  8  C.  &P.  115;  Rex  y.  Thomas, 
Eiiss.  on  Crimes,  582.  7  C.  &  P.  817;    Supra,  §  125;    [State  v. 

3  1  Hale,  P.  C.  473  ;  Foster,  291.  And  Johnson,  2  Jones  (Law),  247.]  [*  Where 
see  Rex  v.  Wigcrs,  l  Leach,  C.  C.  (4th  the  defendant  was  accused  of  murder  of 
ed.),  379;  Wild's  case,  2  Lewin,  C.  C.  one  who  was  injuring  a  mining  claim,  it 
214 ;  Rex  v.  Connor,  7  C  &  P.  438.  was  held  that  evidence  was  admissible  on 

*  Halloway's  case,    Cro.   Car.   131;  J.  the  part  of  the  defendant  of  his  ownership 

Kely.  127.  of  the  claim  at  the  time  to  show  the  con- 

^  Foster,  291 ;  J.  Kely.  132.  dition  of  his  mind,  and  the  character  of 

^  Rex  V.  Mason,  Foster,  132 ;  Id.  296 ;  the  offence,  and  as  part  of  the  res  gestae. 

1  Hale,  P.  C.  452;  Rex  v.  Hayward,  6  C.  People  v.  Costello,  15  Cal.  350.] 


110  LAW    OF   EVIDENCE  IN    CRIMINAL   CASES.  [PART  V. 

kills  another.^  To  reduce  a  cliarge  of  murder  to  manslaughter  of 
this  kind,  the  evidence  will  be  directed  to  show  either  that  the  act 
intended  or  attempted  to  be  done  was  not  felonious,  nor  tending 
to  great  bodily  harm  ;  or  that  it  was  not  only  lawful,  but  was  done 
with  due  care  and  caution,  or  in  cases  of  science,  with  requisite 
skill.  Thus,  if  one,  shooting  at  another's  poultry  wantonly,  and 
without  intent  to  steal  them,  accidentally  kills  a  man,  it  is  but 
manslaughter  ;  but  if  he  had  intended  to  have  stolen  the  poidtry, 
it  would  have  been  murder .^  So,  if  he  throw  a  stone  at  another's 
horse,  and  inadvertently  it  kills  a  man ;  ^  or  if  one,  in  playing  a 
merry,  though  mischievous  prank,  cause  the  death  of  another, 
where  no  serious  personal  hurt  was  intended,  as  by  tilting  up  a 
cart,  or  the  like,  it  is  not  murder,  but  manslaughter.*  But  if  the 
sport  intended  was  dangerous,  and  likely  in  itself  to  produce 
great  bodily  harm,  or  to  cause  a  breach  of  the  peace,  these  cir- 
cumstances might-  show  malice,  and  fix  upon  the  party  the  guilt 
of  murder.^ 

§  129.  If  the  act  be  in  itself  laivful,  but  done  in  an  improper 
manner,  whether  it  be  by  excess,  or  by  culpable  ignorance,  or  by 
want  of  due  caution,  and  death  ensues,  it  will  be  manslaughter.^ 
Such  is  the  case  where  death  is  occasioned  by  excessive  correction 
given  to  a  child  by  the  parent  or  master  ; "'  or  by  ignorance,  gross 
negligence,  or  culpable  inattention  or  maltreatment  of  a  patient  on 
the  part  of  one  assuming  to  be  his  physician  or  surgeon  ;  ^  or  by 
the  negligent  driving  of  a  cart  or  carriage,^  or  the  like  ill  manage- 
ment of  a  boat ;  or  by  gross  carelessness  in  casting  down  rubbish 
from  a  staging,  or  the  like.^o    And,  generally,  it  may  be  laid  down, 

1  BE  Comm.  182, 192;  Foster,  261,  262.  Spiller,  5  C.  &  P.  333  ;   Rex  v.  Simpson, 

2  1  Foster,  258,  259.  1  Lewin,  C.  C.  172 ;  Rex  v.  Ferf!:uson,  Id. 
8  1  Hale,  i'.  0.39.  181  ;  Rex  v.  Lonp:,  4  C.  &  P.  398.  Upon 
*  Rex  v.' Sullivan,  7  C.  &  P.  641.     And  such  a  eharse,  evidenee  cannot  be  gone 

see  1  East,  P.  C.  257  ;  1  Rnss.  on  Crimes,  into  on  either  side,  of  former  cases  treated 

637,  638  ;'  Rex  v.  Martin,  3  C.  &  P.  211  ;  hy  the  prisoner.     Regina  v.  Whitehead,  3 

Rex  I'.  Errinffton,  2  Lewin,  C.  C.  217  ;   3  C.  &  K.  202.     And  see  Rex  v.  Van  Butch- 

Inst.  57.  ell,  3  C.  &  P.  629;    Rex  v.  Williamson, 

5  1  Russ.  on  Crimes,  637,  638.  Id.  635  ;    Commonwealth  v.  Thompson,  6 

^  [In    the    recent   case    of    Regina    ».  Mass.  134. 

Hughes,  1   Dears.  &  Bell,  248,   it  is  laid  »  East,  P.  C.  263;  Rex  v.  Walker,  1  C. 

down  that  "  that  which  constitutes  murder,  &  P.  320  ;  Rex  v.  Knight,  1  Lewin,  C.  C. 

being  by  design  and  of  malice  prepense,  -168;    Rex  v.  Grout,  6  C.  &  P.  629;    Ali- 

constitutes    manslaughter     when    arising  son's   Crim.   Law   of  Scotland,  )>p.  113- 

from  culpable  nc-ligcnce."]  122.     See,  as  to  bad  navigation,  Rcgina  v. 

'  1  Hale,  P.  ('.  473.  474;   J.  Kely.  64,  Tavlor,  9   C.  &  P.  672;    Alison's  Crim. 

133;   Rex  v.  Connor,  7  C.  &,  P.  438;  Fos-  Law  of   Scotland,  pp.    122;    The  United 

tcr  262  States  v.  Warner,  4  McLean,  643. 

8  1   Hale,  P.  C.  429  ;    Rex  v.  Webb,   1  i'  1    East,  P.    C.   262 ;    Foster,   262 ;    1 

M.  &  Rob.  405  ;  2  Lewin,  C.  C.  196  ;   He-  Hale,  P.  C.  472;  3  Inst.  57. 
gina  V.  Spilling,  2  M.  &  Rob.  107  ;  Rex  v. 


PART  v.]  HOMICIDE.  Ill 

that  where  one,  by  his  negligence,  has  contributed  to  the  death  of 
another,  he  is  responsible. ^  The  caution  which  the  law  requires 
in  all  these  cases,  is  not  the  utmost  degree  which  can  possibly  be 
used,  but  such  reasonable  care  as  is  used  in  the  like  cases,  and  has 
been  found,  by  long  experience,  to  answer  the  end.^ 

§  130.  Murder,  which  is  the  other  kind  of  felonious  homicide, 
is  when  a  person  of  sound  memory  and  discretion,  unlawfully 
kills  any  reasonable  creature  in  being,  under  the  peace  of  the 
State,  with  malice  aforethought,  either  express  or  implied.^  In 
the  indietme^it  for  this  crime,  it  is  alleged  that  the  jjrisoner,  de- 
scribing him  by  his  true  name  and  addition,  on  such  a  day,  at 
such  a  place  within  the  cotmty  where  the  trial  is  had,  of  his  malice 
aforethought,  feloniously  killed  and  murdered  the  deceased,  de- 
scribing him  as  above,  by  the  means  and  in  the  manner  therein 
set  forth,*  All  these  allegations  are  material  to  be  proved  by  the 
prosecutor,  except  the  allegation  that  the  deceased  was  in  the 
peace  of  the  State,  which  needs  no  proof,  but  will  be  presumed, 
until  the  contrary  appears. 

§  131.  The  point  to  which  the  evidence  of  the  prosecutor  is 
usually  first  directed,  is  the  death  of  the  person  alleged  to  have 
been  killed.  And  this  involves  two  principal  facts,  namely,  that 
the  person  is  dead,  and  that  he  died  in  consequence  of  the  injury 
alleged  to  have  been  received.^  The  corpus  delicti,  or  the  fact  that 
a  murder  has  been  committed,  is  so  essential  to  be  satisfactorily 
proved,  that  Lord  Hale  advises  that  no  person  be  convicted  of 
culpable  homicide,  unless  the  fact  were  proved  to  have  been  done, 
or  at  least  the  body  found  dead.^     "Without  this  proof  a  conviction 

1  Kegina  v.  Swindall,  2  C.  &  K.  232,  instruments,  and  weapons  to  the  Jui'ors 
per  Pollock,  C.  B.  unknoAvn,"  is  sufficient  when  the  circum- 

2  Foster,  264 ;  Alison's  Crim.  Law  of  stances  of  the  case  will  not  admit  of 
Scotland,  pp.  1 43.  And  see  Rex  v.  Hull,  greater  certainty  in  stating  the  means  of 
Kel.  40 ;  1  Leading  Crim.  Cases,  42 ;  Re-  death.  Commonwealth  v.  Webster,  5 
gina  V.  Murray,  5  Cox,  C.  C.  509 ;  Re-  Cush.  295.  [*  The  omission  of  the  word 
gina  V.  Lowe,  4  Cox,  C.  C.  449  ;  3  C.  &  "with"  in  charging  the  instrument  of  the 
K.  123;  1  Leading  Crim.  Cases,  49;  Re-  homicide  is  not  fatal.  Shay  v.  People,  22 
gina  V.  Middleship,  5  Cox,  C.  C.  275  ;  Re-  N.  Y.  317.] 

gina  r.  Longhottom,  3  Cox,  C.  C.  439  ;   1  ^  It  must  also  appear  that  the  death  took 

Leading  Crim.  Cases,  54 ;    Regina  v.  Po-  place  within  a  year  and  a  day,  that  is, 

cock,  17  Q.  B.  34  ;  24  Eng.  Law  &  Eq.  R.  within  a  full  year  from  the  time  when  the 

190.     [*  See  Queen  v.  Ledger,  2  F.  &  E.  wound  was  received;    otherwise  the  law 

857.1  conclusively  presumes  that  the  wound  was 

3  3  Inst.  47;  4  Bl.  Comm.  195;  1  Russ.  not  the  cause  of  the  death.  See  supra, 
on  Crimes,  482;  Wharton's  Am.  Crim.  §120;  The  State  ?;.  Orrell,  1  Dev.  139,  141, 
Law,  356 ;  Commonwealth  v.  Webster,  3  per  Henderson,  J. ;  3  Inst.  53  ;  3  Chitty, 
Cush.  .304.  Crim.  Law  [736]. 

*  An  averment  that  the  defendant  com-  »  2  Hale,  P.  C.  290.  A  similar  rule 
mitted  the  crime  at  a  place  specified,  "  in  prevailed  in  the  Roman  Civil  Law,  as  ap- 
Bome  way  and  manner,  and  by  some  means,     pears  from  the  Digest  on  the  laws  de  pub- 


112  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

would  not  be  warranted,  though  there  were  evidence  of  conduct 
of  the  prisoner  exhibiting  satisfactory  indications  of  guilt.^  But 
tlie  fact,  as  we  have  already  seen,^  need  not  be  directly  proved ; 
it  being  sufficient  if  it  be  established  by  circumstances  so  strong 
and  intense  as  to  produce  the  full  assurance  of  moral  certainty. 
Neither  is  it  indispensably  necessary  to  prove  that  the  prisoner  had 
any  motive  to  commit  the  crime,  though  the  absence  of  such  mo- 
tive ought  to  receive  due  weight  in  his  favor.^ 

§  132.  The  most  positive  and  satisfactory  evidence  of  the  fact  of 
death,  is  the  testimony  of  those  who  were  present  when  it  hap- 
pened ;  or  who,  having  been  personally  acquainted  with  the  de- 
ceased in  his  lifetime,  have  seen  and  recognized  his  body  after  life 
was  extinct.  This  evidence  seems  to  be  required  in  the  English 
House  of  Lords,  in  claims  of  peerage  and  a  fortiori  a  less  satisfac- 
tory measure  of  proof  ought  not  to  be  required  in  a  capital  trial. 
In  these  cases  the  testimony  of  medical  persons,  where  it  can  be 
had,  is  generally  most  desirable,  whenever  the  nature  of  the  case 
is  such  as  to  leave  any  doubt  of  the  fact.* 

§  133.  But  though  it  is  necessary  that  the  hody  of  the  deceased 
he  satisfactorily  identified,  it  is  not  necessary  that  this  be  proved  by 
direct  and  positive  evidence,  if  the  circumstances  be  such  as  to 
leave  no  reasonable  doubt  of  the  fact.  Where  only  mutilated  re- 
mains have  been  found,  it  ought  to  be  clearly  and  satisfactorily 
shown  that  they  are  the  remains  of  a  human  being,  and  of  one 
answering  to  the  sex,  age,  and  description  of  the  deceased  ;  and 

lica  qucestione  a  finnilia  necatorum  hahenda ;  ^  Sumner  v.  The  State,  5  Blackf.  579. 

under  which  no   jier^ion  was  put  on  his  *  Hubbacii  on  Succession,  pp.  159,  160. 

defence  for  the  homicide,  until  tiie  corjnis  By  the  Roman  Civil  Law,  as  well  as  by 

delicti  was  proved  ;  —  nisi  constet  aliquem  ours,  the  death  may  be  proved  not  only  by 

esse  occisum,  non  haberi  de  familia  quiBs-  those  who  saw  the  party  dead  and  buried, 

tionem.      Qnajstioneni   autcm   sic   accipi-  but  by  those  who  saw  him  dyinj,'',  or,  who 

m\is,  non  tormenta  tantum,  sed  omnem  in-  were  present  at  a  funeral  called  his,  but 

giiisilinnfin  ct  difcnsionein  moHis.     Dig.  lib.  wlio  did  not  see  the  body.     Mascard.  Do 

29,  tit.  5,  1.  1,  §  24,  25.  Probat.   Concl.   1077.     In  some  cases,  by 

1  Ke<;ina  v.   Hopkins,  8  C.  &  P.  591.  that  law,  death  might  be  proved  by  com- 

So  held  in  a  case  of  larceny,  in  Tyner  v.  mon   fame;    but   not   in   cases   involving 

The  State,  5  Humjjh.  .383.  hif^hly  jK'nal  consequences  ;  —  non  in  (eau- 

•^  Sn/ini,  §  .30.     [But  see  Ruloff  v.  The  sis)  gravioribus  ;    secus  autem  in  his,  qiuB 

People,  IS  N.  Y.  179,  where  the  cases  arc  modicum  damnum  afferre  possunt.     Idem, 

e.xaminerl   at  great   length,   and   the  rule  Concl.    1076,    n.    1,   3.     It  might  also  be 

maintained  that  the  fact  of  the  death  must  proved   by   circumstantial    evidence;    but 

be  proved  by  certain  and  direct  evidence.]  was  never  to  be  presumed,  as  an  inference 

In  Georgia,  in  case  of  a  capital  conviction  of  law.      Mors  non  prtBsumitur,  sed  est 

upon    circumstantial    evidence    only,    the  probanda;    cum  quililiet  prajsunuitur  vi- 

Judge  who  ])asses  the  sentence  may  com-  vere.     Idem.  Cc)ncl.   1075,  n.  1.     And  see 

mute  the  jmnishment  to  the  penitentiary  Idem.  Concl.    1078,    1079.     Ante,  Vol.  2, 

for  life.   Hotchk.  Dig.  p.  795  ;  2  Cobb's  Dig.  tit.  Dkath. 
p.  838.     [*  State  v.  Davidson,  30  Vt.  385.J 


PART  v.]  HOinCIDE.  113 

the  agency  of  the  prisoner  in  their  mutilation,  or  in  producing  the 
appearances  found  upon  them,  should  be  established.  Identifica- 
tion may  also  be  facilitated  by  circumstances  apparent  in  and  about 
the  remains,  such  as  the  apparel,  articles  found  on  the  person,  and 
t1ie  contents  of  the  stomach,  connected  with  proof  of  the  habits  of 
the  deceased  in  respect  to  his  food,  or  with  the  circumstances  im- 
mediately preceding  his  dissolution. ^ 

§  134.  The  death  and  the  identity  of  the  body  being  established, 
it  is  necessary,  in  the  next  place,  to  prove  that  the  deceased  came 
to  his  death  hy  the  unlawful  act  of  another  person.  The  possibility 
of  reasonably  accounting  for  the  fact  by  suicide,  by  accident,  or  by 
any  natural  cause,  must  be  exchided  by  the  circumstances  proved  ; 
and  it  is  only  when  no  other  hypothesis  will  explain  all  the  condi- 
tions of  the  case,  and  account  for  all  the  facts,  that  it  can  safely 
and  justly  be  concluded  that  it  has  been  caused  by  intentional  in- 
jury .^  Though  suicide  and  accident  are  often  artfully  but  falsely 
suggested  in  the  defence,  as  causes  of  the  deatli,  especially  where 
the  circumstances  are  such  as  to  give  plausibility  to  the  sugges- 
tion ;  yet  the  suggestion  is  not  on  this  account  to  be  disregarded  ; 
but  all  the  facts  relied  on  are  to  be  carefully  compared  and  con- 
sidered ;  and  upon  such  consideration,  if  the  defence  be  false, 
some  of  the  circumstances  will  commonly  be  found  to  be  irrecon- 
cilable with  the  cause  alleged.  Scientific  evidence  sometimes 
leads  to  results  perfectly  satisfactory  to  the  mind  ;  but  when  un- 
corroborated by  conclusive  moral  circumstances,  it  should  be  re- 
ceived with  much  caution  and  reserve  ;  and  justice  no  less  than 
prudence  requires  that,  where  the  guilt  of  the  accused  is  not  con- 
clusively made  out,  however  suspicious  his  conduct  may  have  been, 
he  should  be  acquitted. ^ 

1    Wills   on   Cir.   Evid.   pp.    164-168.  his  memory  from   dishonor,  and  to  pre- 

See  Boorns's  case,  ante,Yo\.  1,  §  214,  n.  serve   his   property  from   forfeiture.     In- 

That  the  name  as  well  as  the  person  of  the  stances    have    also    occurred    where,    in 

deceased  must  be  precisely  identified,  has  doubtful    cases,    the    surviving    relations 

already  been   shown,  supra,  §  22.      The  have  used  great   exertions  to  rescue   the 

subject  of  the  identification  of  mutilated  character  of  the  deceased  from  ignominy, 

remains  was  very  fully  discussed  in  the  by  substantiating    a    charge   of   murder, 

trial  of  Dr.  Webster,  reported  by  Mr.  Be-  On  the  other  hand,  in  frequent  instances, 

mis.     [*  See  State  v.  Williams,  7  Jones's  attempts  have  been  made  by  those  who 

Law,  446. J  have  really  been  guilty  of  murder,  to  per- 

•^  Wills  on  Cir.  Evid.  p.  168.  petrate  it  in  such  a  manner  as  to  induce  a 

3  Ibid.  pp.  168,  172;  Supra,  §  29.     On  belief  that  the  party  was  felo  de  se.     It  la 

this  subject  the  following  important  obser-  well  for  the  securitv  of  society  that  such 

vations  are  made  by  Mr.   Starkie.      "  It  an  attempt  seldom  succeeds,  so  difficult  is 

sometimes   happens  that  a  person  deter-  it  to  substitute  artifice  and  fiction  for  na- 

nained  on  self-destruction  resorts  to  expe-  ture  and  truth.     Where  the  circumstances 

dients  to  conceal  his  guilt,  in  order  to  save  are  natural  and  real,  and  have  not  been 

VOL.  III.  8 


114 


LAW   OF   EVIDENCE  IN   CRIMINAL   CASES. 


[part  V. 


§  135.  Ill  the  case  of  death  hy  poisoning,  it  is  not  necessary  to 
prove  the  particular  substance  or  kind  of  poison  used  ;  nor  to  give 
direct  and  positive  proof  what  is  the  quantity  which  would  destroy 
life ;  ^  nor  is  it  necessary  to  prove  that  such  a  quantity  was  found 
in  the  body  of  the  deceased.  It  is  sufficient  if  the  Jury  are  satis- 
fied, from  all  the  circumstances,  and  beyond  reasonable  doubt,  that 
the  death  was  caused  by  poison,  administered  by  the  prisoner.^ 
Upon  the  latter  point,  the  material  questions  are,  whether  the 
prisoner  had  any  motive  to  poison  the  deceased,  —  whether  he  had 


counterfeited  with  a  view  to  evidence,  they 
must  necessarily  correspond  and  agree 
with  each  other,  for  they  did  really  so  co- 
exist; and,  therefore,  if  any  one  circum- 
stance which  is  essential  to  the  case  at- 
tempted to  be  established  be  wholly  incon- 
sistent and  irreconcilable  with  such  other 
circumstances  as  are  known  or  admitted 
to  be  true,  a  pl:\in  and  certain  inference 
results  that  fraud  and  artifice  have  been 
resorted  to,  and  that  the  hypothesis  to 
which  such  a  circumstance  is  essential 
cannot  be  true.  The  question,  whether  a 
person  has  died  a  natural  death,  as  from 
apoplexy,  or  a  violent  one  from  strangula- 
tion ;  whether  the  death  of  a  body  found 
immersed  in  water  has  been  occasioned  by 
drowning,  or  by  force  and  violence  pre- 
vious to  the  immersion ;  whether  the 
drowning  was  voluntary,  or  the  result  of 
force ;  whether  the  wounds  inflicted  upon 
the  body  were  inflicted  before  or  after 
death,  are  questions  usually  to  be  decided 
by  medical  skill.  It  is  scarcely  necessary 
to  remark,  that  where  a  reasonable  doubt 
arises  whether  the  death  resulted  on  the 
one  hand  from  natural  or  accidental 
causes,  or,  on  the  other,  from  the  deliber- 
ate and  wicked  act  of  the  prisoner,  it 
would  be  unsafe  to  convict,  notwithstand- 
ing strong,  but  merely  circumstantial  evi- 
dence against  him.  Even  medical  skill  is 
not,  in  many  instances,  and  without  refer- 
ence to  the  particular  circumstances  of  the 
case,  decisive  as  to  the  cause  of  the  death  ; 
and  persons  of  science  must,  in  order  to 
form  their  own  conclusion  and  opinion, 
rely  partly  on  external  circumstances.  It 
is,  therctbre,  in  all  cases,  expedient  that 
all  the  accompanying  facts  should  be  ob- 
served and  noted  with  the  greatest  accura- 
cy ;  such  as  the  position  of  the  body,  the 
state  of  the  dress  marks  of  blood,  or  other 
indications  of  violence  ;  and  in  cases  of 
strangulati<jn,  the  situation  of  the  rope, 
the  position  of  \\w  knot ;  and  also  the  sit- 
viation  of  any  instrument  of  violence,  or 
of  any  object  by  which,  considering  the 
position  and  state  of  the  Ixxly,  and  other 
circumstances,  it  is  possible  that  the  death 


may  have  been  accidentally  occasioned." 
2  Stark,  on  Evid.  519 -.521  (6th.  Am.  ed.). 

1  The  observations  of  Mr.  Loft't,  on  the 
testimony  of  men  of  science,  are  worthy  of 
profound  attention.  "In  general,"  he 
says,  "  it  may  be  taken,  that  when  the 
testimonies  of  professional  men  of  just  es- 
timation are  affirimttive,  they  may  be  safe- 
ly credited ;  but  when  negative,  they  do 
not  amount  to  a  disproof  of  a  charge 
otherwise  established  by  various  and  inde- 
pendent circumstances.  Thus,  on  the 
view  of  a  body  after  death,  on  suspicion  of 
poison,  a  physician  may  see  cause  for  not 
positively  pronouncing  that  the  party  died 
by  poison,  yet  if  the  party  charged  be  in- 
terested in  the  death,  if  he  appears  to  have 
made  preparations  of  poisons  without  any 
probable  just  motive,  and  this  secretly ;  if 
it  be  in  evidence  that  he  has  in  other  in- 
stances brought  the  life  of  the  deceased 
into  hazard  ;  if  he  has  discovered  an  ex- 
pectation of  the  fatal  event ;  if  that  event 
has  taken  place  suddenly,  and  without 
previous  circumstances  of  ill  health;  if  he 
has  endeavored  to  stifle  in([uiry  by  precip- 
itately burying  the  body,  and  afterwards, 
on  inspection,  signs  agreeing  with  poison 
are  observed,  though  such  as  medical  men 
will  not  positively  affirm  could  not  have 
been  owing  to  any  other  cause,  the  accu- 
mulative strength  of  circumstantial  evi- 
dence may  be  such  as  to  wan  ant  a  convic- 
tion ;  since  more  cannot  be  required  than 
that  the  charge  should  be  rendered  highly 
credible  from  a  variety  of  detached  points 
of  proof,  and  that  supposing  jioison  to  have 
been  employed,  stronger  demonstration 
could  not  reasonably  have  been  expected 
to  have  been,  under  all  the  circumstances, 
producible."  1  Gilb.  on  Evid.  by  Loflt,  p. 
302. 

^  Rex  I'.  Tawell,  cited  in  Wills  on  Cir. 
JEvid.  180,  181.  Statements  made  by  the 
deceased,  a  nYnnt  time  jircvious  to  the  al- 
leged poisoning,  are  admissible  to  prove 
the  state  of  his  health  at  that  time.  Rc- 
gina  r.  Johnson,  2  C.  &  K.  354.  And  seo 
ante,  Vol.  I,  §  102. 


PART  v.]  HOMICIDE.  115 

the  opportunity  of  administering  poison,  —  and  whether  he  had 
poison  in  his  possession  or  power  to  administer.  To  these  inqui- 
ries, every  part  of  the  prisoner's  conduct  and  language,  in  relation 
to  the  subject,  are  material  parts  of  the  res  gestce,  and  are  admissi- 
ble in  evidence.^  But  it  is  not  necessary  to  prove  that  the  poison 
was  administered  by  the  prisoner's  own  hand  ;  for  if,  with  intent 
to  destroy  the  deceased,  he  prepares  poison  and  lays  it  in  his  way 
and  he  accordingly  takes  it  and  dies ;  or,  if  he  gives  it  to  an  iinio- 
cent  third  person,  to  be  administered  to  the  deceased  as  a  medi- 
cine, which  is  done  and  it  kills  him ;  this  evidence  will  support  a 
charge  against  the  prisoner  as  the  murderer.^  So,  where  the  third 
person,  who  was  directed  by  the  prisoner  to  administer  the  dose, 
omitted  to  do  so,  and  afterwards  the  poison  was  accidentally  ad- 
ministered by  a  child,  and  death  ensued  ;  this  was  held  sufficient 
to  support  an  indictment  against  the  prisoner  as  the  sole  and  im- 
mediate agent  in  the  murder.^ 

§  136.  To  support  an  indictment  for  infanticide,  at  common 
law,  it  must  be  clearly  proved  that  the  child  was  wholly  born,  and 
was  born  alive,  having  an  independent  circulation,  and  existence. 
Its  having  breathed  is  not  sufficient  to  make  the  killing  amount  to 
murder  ;  as  it  might  have  breathed  before  it  was  entirely  born  ;  ^ 
nor  is  it  essential  tbat  it  should  have  breathed  at  the  time  it  was 
killed,  as  many  children  are  born  alive  and  yet  do  not  breathe  for 
some  time  afterwards. ^  Neither  is  it  material  that  it  is  still  con- 
nected with  the  mother  by  the  umbilical  cord,  if  it  be  wholly 
brought  forth,  and  have  an  independent  circulation.^  But  in  all 
cases  of  this  class  it  must  be  remembered,  that  stronger  evidence 
of  intentional  violence  will  be  required  than  in  other  cases  ;  it 
being  established  by  experience  that  in  cases  of  illegitimate  birth, 
the  mother,  in  the  agonies  of  pain  or  despair,  or  in  the  paroxysm 
of  temporary  insanity,  is  sometimes  the  cause  of  the  death  of  her 

1  See  the  observations  of  Bailer,  J.,  in  ^  Rex  v.  Brain,  6  C.  &  P.  349. 
Donellan's  case;  and  of  Abbott,  J.,  in  «  Rex  v.  Reeves,  9  C.  P.  2.5;  Rex  v. 
Rex  V.  Uonnall;  and  of  Rolfe,  B.,  in  Re-  Crutcliley,  7  C.  &  P.  814;  Rex  v.  Sellis, 
gina  V.  Graham  ;  and  of  Parke,  B.,  in  Rex  Id.  850 ;  Regina  v.  Wright,  9  C  &  P. 
V.  Tawell ;  cited  in  Wills  on  Cir.  Evid.  754 ;  Wills  on  Cir.  Evid.  p.  204 ;  Regina 
187-191;  Regina  v.  Geering,  18  Law  J.  v.  Trilloe,  2  Moody,  C.  C.  260;  C.  M. 
215  ;  Supra,  §  9.  650.     If  the  child  be  intentionally  mortal- 

2  J.  Kely.'52,  53;  Foster,  349;  1  Hale,  ly  injured  before  it  is  born,  but  i-;  bom 
P.  C.  616;"  Rex  v.  Nicholson,  1  East,  P.  a"live,  and  afterwards  dies  of  that  injury, 
C.  346.  it   is   murder.      3    Inst.   50;    1    Russ.   on 

3  Regina  v.  Michael,  9  C.  &  P.  356 ;  2  Crimes,  485  ;  Rex  v.  Senior,  1  Moody  C. 
Moodv.  C.  C.  120.  C.  346  ;  4  Com.  Dig.  Justices,  M.  2,  p. 

*  Rex  V.  Enoch,  5  C.  &  P.  539 ;  Rex  v.  449.  See  Regina  v.  West,  2  C.  &  K. 
Potdton,  Id.  329.  784. 


116  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V- 

offspring,  without  any  intention  of  committing  such  a  crime  ;  and 
that  therefore  mere  appearances  of  violence  on  the  child's  body  are 
not  sufficient  to  establisli  her  guilt,  unless  there  be  proof  of  cir- 
cumstances, showing  that  the  violence  was  intentionally  committed, 
or  the  marks  are  of  such  a  kind  as  of  themselves  to  indicate  inten- 
tional murder.^ 

§  137.  After  proving  that  the  deceased  was  feloniously  killed, 
it  is  necessary  to  show  that  the  prisoner  was  the  guilty  agent.  And 
here,  also,  any  circumstances  in  the  conduct  and  conversation  of 
the  prisoner,  tending  to  fix  upon  him  the  guilt  of  the  act,  such  as 
the  motives  which  may  have  urged  him  to  its  commission,  the 
means  and  facilities  for  it  which  he  possessed,  his  conduct  in  pre- 
viously seeking  for  an  opportunity,  or  in  subsequently  using 
means  to  avert  suspicion  from  himself,  to  stifle  inquiry,  or  to 
remove  material  evidence,  are  admissibte  in  evidence.  Other  cir- 
cumstances, such  as  possession  of  poison,  or  a  weapon,  wherewith 
the  deed  may  have  been  done,  marks  of  blood,  the  state  of  the  pris- 
oner's dress,  indications  of  violence,  and  the  like,  are  equally  com- 
petent evidence.  But  it  is  to  be  recollected,  that  a  person  of 
weak  mind  or  nerves,  under  the  terrors  of  a  criminal  accusation, 
or  of  his  situation  as  calculated  to  awaken  suspicion  against  him, 
and  ignorant  of  the  nature  of  evidence,  and  the  course  of  criminal 
proceedings,  and  unconscious  of  the  security  which  truth  and  sin 
cerity  afford,  will  often  resort  to  artifice  and  falsehood,  and  even 
to  tlie  fabrication  of  testimony,  in  order  to  defend  and  exonerate 
himself.^  In  order,  therefore,  to  convict  the  prisoner  upon  the 
evidence  of  circumstances,  it  is  held  necessary  not  only  that  the 
circumstances  all  concur  to  show  that  he  committed  the  crime, 
but  that  they  all  be  inconsistent  with  any  other  rational  con- 
clusion.^ 

1  Alison's  Prin.   Crim.  Law,  pp.   158,  well  acquainted  with  her,  and  had  been 
159 ;  Wills  on  Cir.  Evid.  206,  207.  seen  near  the  spot   (a  lano),  in  or  near 

2  2   Hale,  P.   C.  290;  3  Inst.  202;    2  which  the  murder  was   committed,  very- 
Stark.  Ev.  521,  522.  shortly  before.     There  were  also  four  oth- 

^  Ho(l;;e's  case,  2  Lewin,  C.  C.  227.     In  or  persons  toj^ether  in  the  same  lane  about 

this  case  the  prisoner  was  charged  with  the  same  period  of  time.     The  prisoner, 

murder.     The  case  was  one  of  circumstan-  also,  was  seen  some  hours  after,  and  on 

tial  evidence  alto<;etlier,  and  contained  no  the  same  day,  but  at  a  distance  of  some 

one  fact  which,  taken  alone,  amounted  to  a  miles  from  the  spot  in  question,  buryinj;^ 

presumption  of  fjuilt.     The  murdered  par-  something   which   on    the    following   day 

ty  (a  woman),  who  was  also  robbed,  was  was  taken  up  and  turned  out  to  be  money, 

returning  from  market  with  money  in  her  and   which  corresiionded   generally   as   to 

pocket;  but  liuw  niucli,  or  of  what  partic-  amount  with  that  wliich  the  nmrdered  wo- 

ular  description  of  coin,  could  not  be  as-  man  was  supposed  to  have  had  in  her  pos- 

certained  distinctly.      The  prisoner   was  session  when  she  set  out  on  her  return 


?AKT  v.]  HOMICIDE.  117 

§  138.  But  in  order  to  prove  that  the  prisoner  was  the  guilty 
agent,  it  is  not  necessary  to  show  that  the  fatal  deed  was  done  im- 
mediately by  Ms  own  hand.  We  have  already  seen  that  if  he  were 
actually  present,  aiding  and  abetting  the  deed  ;  or  were  construc- 
tively present,  by  performing  his  part  in  an  unlawful  and  felonious 
enterprise,  expected  to  result  in  homicide,  such  as  by  keeping 
watch  at  a  distance  to  prevent  surprise  or  the  like,  and  a  murder 
is  committed  by  some  other  of  the  party,  in  pursuance  of  the 
original  design  ;  or  if  he  combined  with  others  to  commit  an  un- 
lawful act,  with  the  resolution  to  overcome  all  opposition  by  force, 
and  it  results  in  a  murder  ;  or  if  he  employ  another  person,  uncon- 
scious of  guilt,  such  as  an  idiot,  lunatic,  or  child  of  tender  age,  as 
the  instrument  of  his  crime,  he  is  guilty  as  the  principal  and 
immediate  oifender,  and  the  charge  against  him  as  such  will  be 
supported  by  evidence  of  these  facts.^ 

§  139.  If  death  ensues  from  a  wound,  given  in  malice,  but  not 
in  its  7iature  mortal,  but  which  being  neglected  or  mismanaged,  the 
party  died  ;  this  will  not  excuse  the  prisoner  who  gave  it ;  but  he 
will  be  held  guilty  of  the  murder,  unless  he  can  make  it  clearly 
and  certainly  appear  that  the  maltreatment  of  the  wound,  or  the 
medicine  administered  to  the  patient,  or  his  own  misconduct,  and 
not  the  wound  itself,  was  the  sole  cause  of  his  death  ;  for  if  the 
wound  had  not  been  given,  the  party  had  not  died.^  So,  if  the  de- 
ceased were  ill  of  a  disease  apparently  mortal,  and  his  death  were 
hastened  by  injuries  maliciously  inflicted  by  the  prisoner,  this  proof 
will  support  an  indictment  against  him  for  murder  ;  for  an  offender 
shall  not  apportion  his  own  wrong.^ 

home  from  market,  and  of  which  she  had  Jury  returned  a  verdict  of  Not  guilty, 
been  robbed.  See  1  Stark.  Ev.  (London  ed.  1853J,  862. 
Alderson,  B.,  told  the  Jury,  that  the  i  Ante,  Vol.  1,  §  111  ;  Supra,  tit.  Ac- 
case  was  made  up  of  circumstances  entire-  cessort,  passim ;  Supra,  §  9  ;  Foster, 
ly ;  and  that,  before  they  could  find  the  259,  350,  353 ;  Rex  v.  Culkin,  5  C.  &  P. 
prisoner  guilty,  they  must  be  satisfied,  121  ;  1  Hale,  P.  C.  461  ;  1  Russ.  on 
"not  only  that  those  circumstances  were  Crimes,  26-30;  Regina  v.  Tyler,  8  C.  & 
consistent  with  his  having  committed  the  P.  616;  [Commonwealth  v.  Chapman,  11 
act,  but  they  must  also  be  satisfied  that  the  Cush.  422.] 

facts  were  such  as  to  be  inconsistent  with  any  '^    Commonwealth   ih  M'Pike,  3   Cush. 

other  rational  conclusion  than  that  the  prisoner  181;    McAllister  v.    The  State,    17    Ala. 

was  the  guilty  person.     He  then  pointed  out  434;   Commonwealth  v.  Green,  1    Ashm. 

to  them  the  proneness  of  the  human  mind  289  ;  Rex  v.  Rew,  J.  Kely.  26  ;  1  Hale,  P. 

to  look  for  —  and  often  slightly  to  distort  C.  428;  1  Russ.  on  Crimes,  505;  Regina 

the  facts  in  order  to  establish  such  a  prop-  v.   Holland,  2  M.  &  Rob.  351  ;    Alison'a 

osition —  forgetting  that  a  single  circum-  Crim.  Law  of  Scotland,  147. 

stance  which   is  inconsistent  with  such  a  ^1  Hale,  P.  C.  428  ;  1  Russ.  on  Crimes, 

conclusion  is  of  more  importance  than  all  505,   506,   and  note   by  Greaves ;    Rex   v. 

the  rest,  inasmuch  as  it  destroys  the  hy-  Martin,  5   C.  &  P.   128;  Rex  v.  Webb,  1 

pothesis  of  miilt.     The  learned  Baron  then  M.  &  Hob.  405  ;  [Commonwealth  v.  Fox, 

summed  up  the  facts  of  the  case,  and  the  7  Gray,  585.] 


118  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

§  140.  The  mode  of  hilling  is  not  material.  Moriendi  mille 
figurce.  It  is  only  material  that  it  be  shown  that  the  deceased  died 
of  the  injury  inflicted,  as  its  natural,  usual,  and  probable  conse- 
quence. The  nature  of  the  injury  is  specifically  set  forth  in  the 
indictment ;  but,  as  we  have  already  seen,^  it  is  sufficient  if  the 
proof  agree  loitli  the  allegation  in  its  substance  and  generic  character , 
without  precise  conformity  in  every  particular.  Thus,  if  the  alle- 
gation be  that  the  death  was  caused  by  stabbing  with  a  dagger, 
and  the  proof  be  of  kiUing  by  any  other  sharp  instrument ;  ^  or  if 
it  be  alleged  that  the  death  was  caused  by  a  blow  with  a  club,  or 
by  a  particular  kind  of  poison,  or  by  a  particular  manner  of  suffo- 
cation, and  the  proof  be  of  killing  by  a  blow  given  with  a  stone  or 
any  other  substance,  or  by  a  different  kind  of  poison,  or  another 
manner  of  suffocation,  it  is  sufficient ;  ^  for,  as  Lord  Coke  observes, 
the  evidence  agrees  with  the  effect  of  the  indictment,  and  so  the 
variance  from  the  circumstance  is  not  material.  But  if  the  evidence 
be  of  death  in  a  manner  essentially  different  from  that  which  is 
alleged  ;  as,  if  the  allegation  be  of  stabbing  or  shooting,  and  the 
evidence  be  of  death  by  poisoning  ;  or  the  allegation  be  of  death 
by  blows  inflicted  by  the  prisoner,  and  the  proof  be  that  the  de- 
ceased was  knocked  down  by  him  and  killed  by  falling  on  a  stone  ; 
the  indictment  is  not  supported.*  And  whatever  be  the  act  of 
violence  alleged,  it  must  appear  in  evidence  that  the  death  was  the 
consequence  of  that  act.  But  if  it  be  proved  that  blows  were  given 
by  a  lethal  weapon,  and  were  followed  by  insensibility  or  other 
symptoms  of  fatal  danger,  and  afterwards  by  death,  this  is  suffi- 
cient to  throw  on  the  prisoner  the  burden  of  proving  that  the  death 
proceeded  from  some  other  cause.^ 

§  141.    Where  the  death  is  charged  to  have  proceeded  from  a  par- 
ticular artificial  cause,  and  the  proof  is,  that  it  was  only  accelerated 

1  Ante,  Vol.  1,  §  65.     And  see  2  Hawk.  Rex  v.  Waters,  7   C.   &  P.  250;   Rex  v. 

P.  C.  ch.  46,  §  37.  Grounsell,  Id.  788 ;  Rex  v.  Martin,  5  C.  & 

^   Rex  V.   Maekalley,  9  Rep.  65,  67;    2  P.  128.    And  see  Rex  ?•.  Hickman,  Id.  151  ; 

Inst.  319.     So,  if  the  eharge  be  of  murder  Retrina  v.  O'Brian,  2  0.  &  K.  115;  Regina 

by    "cutting    with    a    liatchet,"    or,    by  i;.  Warman,  Id.  195 ;   ylx/*?.  Vol.  1,  §  65. 
"striking  and  cutting  with  an  instrument         *    Rex  u.  Thom])son,   1    Moody,    C.    C. 

unknown,"    evidence    may    be    given    of  139;    Rex  v.   Kelly,   Id.    113.     If  the  al- 

shooting  with  a  pistol.      The   IVoplc   v.  legation    be   of    sliooting   with    a   leaden 

Colt,   3    Hill   (N.   Y.),   432.      And  if  the  bullet,  and  the  proof  bo  that  there  was  no 

charge  be  of  shooting  with  a  leaden  bullet,  bullet,  but  that  the  injury  proceeded  from 

it  is  supported  by  proof  of  shooting  with  a  the  wadding  ;  fjiKt'rc,  whether  the  charge 

load  of  duek-shot.     Goodwin's  case,  4  Sm.  is   su]iportcd  bv  the  evidence.      And  see 

&  M.  .')20.  Rex  r.  Hughes,"  5  C.  &  P.  126. 

3  2  Hale,  P.  C.  185;  Rex  v.  Tye,  Russ.         ^  United  States  v.  Wiltberger,  3  Wash. 

&  Ry.  345  ;  Rex  v.  Culkin,  5  C.  &  P.  121 ;  515. 


PART  v.]  HOMICIDE.  119 

hy  that  cause,  but  in  fact  proceeded  from  another  artificial  cause,  the 
evidence  does  not  support  the  charge.  Thus,  where  the  charge 
was  of  causing  the  death  of  a  child  by  exposing  it  to  cold,  and  the 
proof  was,  that  it  was  found  exposed  in  a  field,  alive,  but  with  a 
mortal  contusion  on  its  head,  and  that  it  died  in  a  few  hours  after- 
ward ;  it  was  held,  that  if  the  death  was  only  accelerated  by  the 
exposure,  the  charge  was  not  supported.^  So,  if  the  indictment 
charges  that  the  death  was  occasioned  by  two  jointly  co-operating 
causes,  as,  by  starving  and  beating,  both  must  be  proved,  or  the 
indictment  fails.^  But  if  the  charge  be  of  killing  by  the  act  of  the 
prisoner  as  the  cause,  and  the  proof  is  that  the  deceased  was  sick, 
and  must  soon  have  died  from  that  disease,  as  a  natural  conse- 
quence, the  violent  act  of  the  prisoner  only  having  accelerated  his 
death,  the  charge  is  nevertheless  supported.^ 

§  142.  Forcing  a  person  to  do  an  act  ivhich  causes  his  death, 
renders  the  death  the  guilty  deed  on  him  who  compelled  the 
deceased  to  do  the  act.  And  it  is  not  material  whether  the  force 
were  applied  to  the  body  or  the  mind  ;  but  if  it  were  the  latter,  it 
must  be  shown  that  there  was  the  apprehension  of  immediate  vio- 
lence, and  well  grounded,  from  the  circumstances  by  which  the 
deceased  was  surrounded ;  and  it  need  not  appear  that  there  was 
no  other  way  of  escape,  but  it  must  appear  that  the  step  was  taken 
to  avoid  the  threatened  danger,  and  was  such  as  a  reasonable  man 
might  take.*  But  if  the  charge  be  that  the  prisoner  "  did  compel 
and  force  "  another  person  to  do  an  act,  which  caused  the  death 
of  a  third  party,  this  allegation  will  require  the  evidence  of  per- 
sonal affirmative  force,  applied  to  the  party  in  question.  Thus, 
where  it  was  stated  in  the  indictment,  that  the  prisoner  "  did  com- 
pel and  force  "  A.  and  B.  to  leave  working  at  the  windlass  of  a 
coal-mine,  by  means  of  which  the  bucket  fell  on  the  head  of  the 
deceased,  who  was  at  the  bottom  of  the  mine,  and  killed  him ;  and 

1  Stockdale's  case,  2  Lewin,  C.  C.  220 ;  "  Regina  v.  Pitts,  Carr.  &  Marshm.  284, 

1  Russ.  on  Crimes,  566.  per  Erskine,  J. ;  Rex  v.  Evans,   1   Russ. 

■■^   Ibid. ;  Rex  v.  Saunders,  7   C.   &  P.  on  Crimes,  489  ;    Rex  v.  Waters,  6  C.  & 

277.  P.  328.     If  a  shipmaster  knowingly  and 

3    The   State  v.    Morea,   2   Ala.    275  ;  maliciotisly  compels  a  sick  or  disabled  sea- 

[Commonwealth    v.   Fox,   7    Gray,    585.  man  to  go  aloft,  while  he  is  in  such  a  state 

An  assault  with  the  hands  and  feet  only  of  debility  and  exhaustion  that  he  cannot 

upon  a  person  whom  the  prisoner  knew,  comply  without  danger  of  death  or  enor- 

or  had  reasonable  cause  to  believe,  was  so  mous  bodily  injury,  and  the  seaman  falls 

feeble   that  the  attack  might   hasten   her  from  the  mast  and  is  drowned  or  killed, 

death,  is  enough  to  warrant  a  conviction  it  is  murder  in  the  master,  whether  the 

of  murder.     Otherwise,  if  the  criminal  did  means  of  compulsion  were  moral  or  phys- 

not  know,  or  have  reasonable  cause  to  be-  ical.     United   States  v.  Preeifaan,  4  Ma- 

lieve,  the  deceased  to  be  so  feeble.     Ibid.]  son,  505. 


120  LAW    OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

the  evidence  was,  that  A.  and  B.  were  working  at  one  handle  of 
the  windlass,  and  the  prisoner  at  the  other,  all  their  united 
strength  being  requisite  to  raise  the  loaded  bucket,  and  that  the 
prisoner  let  go  his  handle  and  went  away,  whereupon  the  others, 
being  unable  to  hold  the  windlass  alone,  let  go  their  hold,  and  so 
the  bucket  fell  and  killed  the  deceased ;  it  was  held,  that  this 
evidence  was  not  sufficient  to  support  the  indictment.^ 

§  143.  In  regard  to  the  place  where  the  crime  was  committed, 
it  is  material  to  prove  that  it  was  done  in  the  county  where  the 
trial  is  had  ;  for  by  the  common  law,  murder,  like  all  other 
offences,  can  be  inquired  of  only  in  the  county  where  it  was  com- 
mitted. Hence,  the  indictment  should  be  so  drawn,  that  it  may 
judicially  appear  to  the  Court  that  the  offence  was  committed 
within  the  county,  this  being  the  limit  of  their  jurisdiction ;  and 
the  uniform  course,  in  capital  cases,  has  always  been  to  state  also 
the  town  or  parish  where  it  was  done ;  but  it  is  not  material,  at 
this  day,  to  prove  the  town  or  parish,  in  any  case,  unless  where  it 
is  stated  as  matter  of  local  description,  and  not  as  venue. ^  Neither 
is  it  material,  as  we  have  already  seen,  to  prove  the  precise  time 
when  the  crime  was  perpetrated,  if  it  be  alleged  and  proved  that 
the  death  took  place  within  a  year  and  a  day  after  the  injury  or 
mortal  stroke  was  inflicted.^ 

§  144.  The  chief  characteristic  of  this  crime,  distinguishing  it 
from  every  other  species  of  homicide,  and  therefore  indispensably 
necessary  to  be  proved,  is  malice  prepense,  or  aforetJiought.  This 
term,  however,  is  not  restricted  to  spite  or  malevolence  towards 
the  deceased  in  particular,  but,  as  we  have  stated  in  a  preceding 
section,  it  is  understood  to  mean  that  general  malignity  and  reck- 
lessness of  the  lives  and  personal  safety  of  others,  which  proceed 
from  a  heart  void  of  a  just  sense  of  social  duty,  and  fatally  bent  on 
mischief.*  And  whenever  the  fatal  act  is  committed  deliberately, 
or  without  adequate  provocation,  the  law  presumes  that  it  was 

1  Rex  V.  Llovd,  1  C.  &  P.  301.  The  reason  for  this  strictness,  in  rcir.ard  to 

2  2  liawk.  1'".  C.  eh.  25,  §  84 ;  2  Russ.  the  jjlace  of  trial,  was,  tliat  anciently  the 
on  Crimes,  800,  801  ;  Commonwealth  v.  Jurors  decided  causes  upon  their  own 
Springfield,  7  Mass.  1."}.  By  .the  common  private  knowledije,  as  well  as  upon  the 
law,  as  recited  in  the  Stat.  2  &  .3  Ed.  6,  caj).  evidence  <rivcn  hy  others,  and,  therefore, 
24,  §  2,  if  the  mortal  stroke  or  injury  was  were  summoned  ck  ricincto.  See  Stephen 
given  in  one  county,  and  the  death  hap-  on  Pleading-,  pp.  153,  297,  301  (Am.  ed. 
pened  in  another,  the  j)arty  coulil  not  he  1824). 

tried  in  either;   hut,  hy  that  statutr,  ])rovi-  '*  Supra,  §  120. 

sion  was  made  that  tlie  trial  nii;,'ht  he  had  *  See  mipra,  §  14  ;   4  Bl.   Comm.   198; 

in  either  of  the  counties;  and  the  like  rule  Foster,    256,    257;    2    Stark.    Evid.    516- 

is  adopted  generally  in  the  United  States.  United  States  v.  Ross,  1  Gall.  628. 


PART  v.]  HOMICIDE.  121 

done  in  malice ;  and  it  behooves  the  prisoner  to  show,  from  evi- 
dence, or  by  inference  from  the  circumstances  of  the  case,  that  the 
offence  is  of  a  iuitigated  character,  and  does  not  amount  to  mur- 
der.^  In  showing  this,  the  idea  or  meaning  of  what  the  law  terms 
malice,  is  carefully  to  be  kept  in  view ;  and  the  evidence  is  to  be 
directed  not  merely  to  prove  that  he  entertained  no  ill-will  towards 
the  deceased  in  particular,  but  to  show  that,  in  doing  the  act 
which  resulted  fatally,  he  was  not  unmindful,  but,  on  the  con- 
trary, was  duly  considerate  and  careful  of  the  lives  and  safety 
of  all  persons. 

§  145.  Malice  is  said  to  be  either  express  or  implied.  Express 
malice  is  proved  by  evidence  of  a  deliberately  formed  design  to  kill 
another ;  and  such  design  may  be  shown  from  the  circumstances 
attending  the  act,  such  as  the  deliberate  selection  and  use  of  a 
lethal  weapon,  knowing  it  to  be  such;  a  preconcerted  hostile  meet- 
•  ing,  whether  in  a  regular  duel,  with  seconds,  or  in  a  street  fight 
mutually  agreed  on,  or  notified  and  threatened  by  the  prisoner ; 
privily  lying  in  wait,  a  previous  quarrel  or  grudge,  the  preparation 
of  poison,  or  other  means  of  doing  great  bodily  harm,  or  the  like.^ 
Implied  or  constructive  mcdice,  is  an  inference  or  conclusion  of  law 
upon  the  facts  found  by  the  Jury ;  and  among  these,  the  actual  in- 
tention of  the  prisoner  becomes  an  important  fact ;  for  though  he 
may  not  have  intended  to  take  away  life,  or  to  do  any  personal 
harm,  yet  he  may  have  been  engaged  in  the  perpetration  of  some 
other  felonious  or  unlawful  act,  from  which  the  law  raises  the  pre- 
sumption of  malice.^  Thus,  if  one  attempts  to  kill  or  maim  A., 
and  in  the  attempt,  by  accident,  kills  B.,  who  was  his  dearest 

1  Rex  V.  Greenacre,  8  C.  &  P.  35,  per  the  mortal  wound,  the  offence  is  murder. 

Tindal,  C.  J. ;  4  Bl.  Coram.  200 ;  Supra,  State  v.  McDonnell,  32  Vt.  491  ;  People 

S13;  York's  case,  9  Met.  103 ;  [See  Com-  v.   Bealoba,    17    Cal.    389;    Donnelly  v. 

^onwealth    v.    Hawkins,    3    Gray,    463 ;  State,  2    Dutch,  463   and   601 ;    State  v. 

United  States  v.  Mingo,  2  Curt.  C.  C.  1  ;  Shoultz,  25  Mis.  128.     See  the  dissenting 

^United    States    v.   Armstrong,     lb.  446.]  opinion  of  Gierke,  J.,  in  Sanchez  v.  People 

.Such  is  also  the  rule  in  Scotland.     AH-  22  N.  Y.  147,  to  the  point  that  under  the 

Si'son's  Grim.  Law  of  Scotland,  48,49.     It  influence  of  a  strong  passion  a  man  may  be 

~also  seems  to  be  the  rule  of  the  Roman  so  far  incapax  doU  as  to  plan  a  deliberate 

b-  Civil  Law.     Omne  malum  factum  prave  homicide  without  legal  malice  prepense.] 

~  semper   praesumitur  actum;    nisi   ratione         ^  4  Bl.  Coram.  198,  199.     And  see  The 

^^■personas    contraria  omnino   oriatur    prse-  State  v.   Zellers,   2   Halst.   220;    Stone's 

~    suraptio.      Mascard.     De    Proliat.    Goncl.  case,  4   Humph.  27.     Where  the  crime  is 

^     223,    n.   5.     Si  homicidium  coramittatur,  charged  to  have  been  committed  with  the 

'■     prffisuraitur  in  dubio  dolose  comraitti,  licet  actual  and  preraeditated  design  to  kill  the 

potuisset    patrari    ad    defensionera.      Id.  deceased,  this  has  been  regarded  as  of  the 

Concl.    1007,  n.  62.     Omne  malixm  prse-  essence  of  the  charge,  and  held  necessary 

sumitur  pessirae  factura,  nisi  pi-obetur  con-  to  be  proved.     The  People  v.  White,  24 

trariura.     Id.    Concl.    1163,  n.  23.     [*  If  Wend.  520. 

the  design  to  kill  be  formed  deliberately  for         ^  2  Stark,  on  Evid.  515,  516;   Foster, 

ever  so  short  a  time  before  the  iutliction  of  255-  257. 


122  LAW   OF   EVIDENCE   IN   CRIMINAL    CASES.  [PAET  V. 

friiMicl  or  dailing-  child  ;  or  if  one,  in  the  attempt  to  procure  an 
abortion,  causes  tlie  death  of  the  motlier ;  or  if  in  a  riot  or  fight, 
one  of  the  parties  accidentally  kills  a  third  person,  who  interfered 
to  ])art  the  combatants  and  preserve  the  peace,  the  law  implies 
malice,  and  the  slayer  is  held  guilty  of  murder.^  And  though 
other  agents  intervene  between  the  original  felonious  act  and  its 
consummation,  as,  if  A.  gives  poisoned  food  to  B.,  intending  that 
he  should  eat  it  and  die,  and  B.,  ignorant  of  the  poison,  and 
against  the  will  and  entreaty  of  A.,  gives  it  to  a  child,  who  dies 
thereby,^  or  it  is  voluntarily  tasted  by  an  innocent  third  person,  by 
way  of  convincing  others  of  his  belief  that  it  is  not  poisoned,  as 
in  the  case  of  the  apothecary,  into  whose  medicine,  prepared  by 
him  for  a  sick  person,  another  had  purposely  mingled  poison,^ 
the  law  still  implies  malice,  and  holds  the  wrong-doer  guilty  of 
murder. 

§  146.  Malice  is  also  a  legal  presumption,  where  an  officer  of 
justice  is  resisted  while  in  the  execution  of  his  office,  and  in  such 
resistance  is  killed.  And  this  rule  is  extended  to  all  executive 
officers,  such  as  sheriffs,  marshals,  and  their  deputies,  coroners, 
constables,  bailiffs,  and  all  others  authorized  to  execute  process 
and  preserve  the  peace,  and  to  all  persons  aiding  them  therein,  as 
well  as  to  the  watchmen,  and  officers  and  men  in  the  department 
of  police,  and  their  assistants.  The  rule  also  extends  not  only  to 
the  scene  of  action,  and  while  the  officer  is  engaged  in  the  par- 
ticular duty  of  his  office  which  called  him  thither,  but  also  to  the 
time  while  he  is  going  to  and  returning  from  the  places  eundo, 
mo7'cmdo,  et  redeundo.  It  also  applies  to  all  persons  knowingly 
aiding,  abetting,  and  taking  part  in  the  act  of  resistance.  But  the 
rule  is  limited  to  cases  where  the  officer  is  in  the  due  execution  of 
his  duty,  having  sufficient  authority  for  the  purpose ;  and  where 
his  official  character  or  his  right  to  act,  is  either  actually  known, 
or  may  well  be  presumed  from  the  circumstances ;  or  where  the 
slayer,  not  knowing  the  officer  or  the  circumstances,  interfered  to 
help  a  fight,  by  aiding  one  party  against  the  other,  and  not  to  pre- 
serve the  peace  and  prevent  mischief.*  This  rule  is  also  applied 
in  the  case  of  private  persons  killed  in  attempting  to  arrest  a 

1  Foster,  261,  262;  1   Ilalc,  P.  C.  438,  treated;  a  more  extended  discussion  of  it 

441  ;   1  ILnvk.  P.  C  b.  1,  eh.  81,  §  54.  bein<;  foreiirn  from  the  phin  of  this  work. 

■■^  Saunders's  ease,  Plowd.  47.3.  See   also   Whartf>n's   Amer.    Crim.    Law, 

8  Gore's  ease,  9  Uep.  81.  pp.  .398-40.3;    Siipm,    §    123;    Common- 

*  See  1  Russ.  on  Crimes,  pp.  5.32  -  538,  wealth  v.  Drew,  4  Mass.  391,  395. 
692-635,    where     this     subject    is    fully 


PART  v.]  HOMICIDE.  123 

criminal  whenever  the  circumstances  were  such  as  to  authorize 
the  arrest.^ 

§  147.  Malice  may  also  be  proved  by  evidence  of  gross  reckless- 
ness of  human  life,  whether  it  be  in  the  act  of  wanton  sport,  such  as 
purposely,  and  with  intent  to  do  hurt,  riding  a  vicious  horse  into  a 
crowd  of  people,  whereby  death  ensues ;  or  by  casting  stones,  or 
other  heavy  bodies,  likely  to  create  danger,  over  a  wall  or  from  a 
building,  with  intent  to  hurt  the  passers-by,  one  of  whom  is 
killed  ;^  or  where  a  parent  or  master  corrects  a  child  in  a  savage 
and  barbarous  manner,  or  with  an  instrument  likely  to  cause 
death,  whereof  the  child  dies  ;^  or  where,  in  any  manner,  the  life 
of  another  is  knowingly,  cruelly,  and  grossly  endangered,  whether 
by  actual  violence,  or  by  inhuman  privation  or  exposure,  and  death 
is  caused  thereby,*  So,  where  death  ensues  in  a  combat  upon  prov- 
ocation sought  hy  the  slayer  ;  or  upon  a  punctilio  proposed  by  him, 
such  as  challenging  the  deceased  to  take  a  pin  out  of  his  sleeve  if 
he  dared.^  So,  if  the  provocation  be  by  ivords  or  gestures  only,  and 
the  stroke  be  with  a  lethal  weapon,  or  in  a  manner  likely  to  kill, 
this  is  evidence  of  malice ;  unless  the  words  or  gestures  be  accom- 
panied by  some  act,  indicating  an  intention  of  following  them  up 
by  an  actual  assault ;  in  which  case  the  offence  is  reduced  to  man- 
slaughter.^ So,  whatever  be  the  provocation,  if  afterwards,  and 
before  the  fatal  stroke,  sufficient  time  had  elapsed  for  the  passion 
to  subside,  this  is  proof  that  the  killing  w^as  of  malice  J  But  when 
express  malice  is  once  proved  to  have  existed,  its  continuance  is  pre- 
sumed, down  to  the  time  of  the  fatal  act ;  and  the  burden  of  proof 
is  on  the  slayer  to  repel  this  presumption  by  showing  that  the 
wicked  purpose  had  afterwards,  and  before  the  fatal  act,  been 
abandoned.^   And  where  such  expressly  malicious  intent  is  proved, 

1  In  what  cases  a  private  person  may  ^  \  Hale,  P.  C.  457. 

make  an  arrest,  see  s»pra,  §  123,  note.  ^  Watts   v.   Brains,    Cro.   EI.    778;   J. 

-  3  Inst.  57,  as  limited  by  Holt,  C.  J.,  1  Kely.   131;    1   Hale,  P.   C.   455,  456;    1 

Ld.  Kavm.  143  ;  I  Hale,  P.  C.  475 ;  4  Bl.  Russ.  on  Crimes,  515  ;  The  State  v.  Mer- 

Comm.  192,  200;   1  East,  P.  C.  231.  rill,  2  Dev.  269. 

3  Foster,  262  ;  1  Hale,  P.  C.  474 ;  Grey's  "  The  subject  of  provocation,  and  when 

case,  J.  Kely.  64.  it   reduces    the    crime    to    manslaughter, 

*  See  Alison's  Crim.  Law  of  Scotland,  has  already  been  considered.     See  supra, 

pp.  3,  4  ;  1  Hale,  P.  C.  431,  432  ;  1  East,  §§  122  -  127.     And  sec  The  State  v.  Hill, 

P.  C.  225  ;  Palm.  548,  per  Jones,  J. ;  Re-  4  Dev.  &  Bat.  491. 

gina  y.  Walters,  Carr.  &  Marshm.  164  ;  1  ^  rpj^^  g^.^^^  ^  Johnson,  1  Ired.  3.54; 
Russ.  on  Crimes,  488  ;  Squire's  case,  Id.  The  State  v.  Tilly,  3  Ired.  424 ;  Shoema- 
490  ;  Stockdale's  case,  2  Lewin,  C.  C.  220  ;  ker  v.  The  State,  12  Ohio,  43  ;  Common- 
Rex  V.  Huggins,  2  Stra.  882  ;  Castel  v.  wealth  v.  Green,  1  Ashm.  289.  And  see 
Bambrilge,  2  Stra.  854,  856.  ante,  Vol.  1,  §  42. 


124  LAW   OF  EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

the   provocation   immediately   preceding  it,   whatever  may  have 
been  its  nature,  is  of  no  avail  to  mitigate  the  offence. 

§  148.  It  is  a  settled  principle  that  drunkermess  is  not  an  ex- 
cuse for  a  criminal  act,  committed  while  the  intoxication  lasts, 
and  being  its  immediate  result.^  But  the  condition  of  the  j^ris- 
oner  in  this  respect  has  sometimes  been  deemed  a  material  inquiry, 
in  order  to  ascertain  whether  he  has  been  guilty  of  tlie  specific 
offence  of  which  he  is  indicted  ;  as,  for  example,  whether  he  be 
guilty  of  murder  in  the  first  or  only  in  the  second  degree.  Mali 
cious  homicides,  it  is  well  known,  are  distinguished  by  the  statutes 
of  several  of  tlie  United  States,  into  cases  of  the  first  and  the  sec- 
ond degrees,  for  which  different  punishments  are  assigned  ;  and 
though  there  is  some  diversity  in  the  descriptions  of  these  cases, 
yet  in  substance  it  will  be  found,  that  murders,  committed  with 
the  deliberate  and  premeditated  purpose  of  killing,  or  in  the  at- 
tempt to  commit  any  other  crime,  punished  with  death  or  perpetual 
confinement  in  the  State  penitentiary,  are  of  the  first  degree  ;  and 
that  all  others  are  murders  of  the  second  degree.^  Whenever, 
therefore,  in  an  indictment  of  murder  in  the  first  degree,  the  chief 
ingredient  is  the  deliberately  formed  purpose  of  taking  life,  it  has 
been  held,  in  some  of  the  United  States,  that  evidence  that  the 
prisoner  was  so  drunk  as  to  be  utterly  incapable  of  forming  such 
deliberately  premeditated  design,  is  admissible  in  proof  that  this 
offence  has  not  been  committed.^  But  whether  this  will  be  gen- 
erally  admitted  as  a  sound  and  safe  rule  of  criminal  law,  can  be 
known  only  from  future  decisions  in  other  States. 

§  149.  It  is  not  competent  for  the  prisoner  to  give  in  evidence 
his  own  account  of  the  transaction,  related  immediately  after  it 
happened,  even  though  no  person  was  present  at  the  occurrence  ; 
for  his  account  of  it  was  no  part  of  the  res  gestce.^ 

1  Ante,  Vol.  2,  §  374;  Supra,  §  6;  The  Swan's  case,  4  Humph.  1.36;  Jones's  case, 
State  V.  Bullock,  i;}  Ala.  41.3.  [If  the  1  Lci^h,  598;  Whitefonl's  case,  6  Rand, 
prisoner  relics  Ufion  delirium  tremens  as  a  721  ;  Clark's  case,  8  Humph.  671. 
defence,  he  must  show  that  o/  the  time  of  s  Cornwell's  case.  Mart.  &  Yerrj.  1.57; 
the  act  he  was  under  a  jiaroxysm  of  that  Swan's  case,  4  Humph.  1.36.  And  see  The 
disorder.  State  ??.  Scwcll,  3  Jones,  (Law),  State  v.  McCants,  1  Spcers,  384.  [*  In 
24.5.  See  the  whole  sulijcct  of  intoxica-  State  v.  Cross,  27  Wis.  332,  it  was  held 
tion  as  a  defence,  thon)u;^hly  examino<l,  that  drunkenness  does  not  mitiixatc  a  crime 
by  Dcnio  anil  Harris,  .JJ.,  in  The  People  ih  any  resjiect ;  and,  Kichardson,  J.,  dis- 
T.  Uofrers,  18  N.  Y.  9.)  sentin<r,  that  the  jury  could  not  j;ive  it  .any 

2  Murray's    case.    2    Ashm.    41;    Wil-  weijrlit  in  detcrminiiifr  whether  a  homicide 
liams's  case.    Id.    69;    Common  wealth   v.  was  wilful,  deliiierate,  or  ])remedifatcd.| 
Prison-keeper.  Id.  227;  Mitchell's  case,  5  *  The  State  r.  'IMIlv,  3  Ired.  424.     And 
Yerg.  340;    Dale's  case,    10   Yerg.   551;  see  an^e,  Vol.  1,  §  108.     [*  In  a  trial  for 


PART  v.] 


HOMicroE. 


125 


murder,  evidence  of  the  character  of  the 
deceased  is  admissible  only  where  the 
immediate  circumstances  of  the  killing 
render  it  doubtful  whether  the  act  was 
justifiable  or  not;  People  v.  Lombard,  17 
Cal.  316,  or  where,  from  the  nature  of 
the  main  proof  in  the  case,  such  character 
becomes  in  some  way  involved  iu  the  res 
gestce.  State  v.  Dumphey,  4  Min.  438,  but 
contra.  Commonwealth  v.  Hilliard,  2  Gray, 
294,  and  Same  v.  Meade,  12  Gray,  167. 
As  to  admissibility  of  evidence  of  the 
character  of  the  deceased  see  Pfomer  v. 
People,  4  Parker,  C  R.  N.  Y.  558,  where 
the  American  authorities  are  cited  very 
fully  by  counsel,  and  Dukes  v.  State,  11 
Ind.  557.  In  a  capital  trial,  if  error  inter- 
venes, it  must  be  assumed  to  be  injurious 
to   the  prisoner,  and  he  is  entitled  to  a 


reversal  of  judgment ;  the  court  has  no 
power  to  affirm  the  case,  merely  because 
they  are  persuaded  that  upon  the  merits 
the  judgment  was  right.  People  v.  Wil- 
liams, 18  Cal.  187.  in  the  recent  case  of 
State  V.  McDonnell,  32  Vt.  R.  591,  538, 
el  seq.,  the  presumption  of  malice  from  the 
mere  fact  of  killing  is  discussed,  and  some 
suggestions  made  in  regard  to  qualifying 
the  rule  by  submitting  the  inquiry,  as  mat- 
ter of  fact,  to  the  consideration  of  the  jury, 
in  connection  with  the  attending  circum- 
stances. And  it  is  even  suggested  here, 
that  the  presumption  of  innocence,  which 
exists  in  all  criminal  cases,  is  more  con- 
trolling than  any  general  natural  presump- 
tion of  malice  arising  from  the  mere  fact 
of  killing.] 


126  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 


LARCENY. 

[*§  150.   Definitions  of  larceny. 
15L    Allegations  in  indictment. 
152.    Name  of  prisoner  and  time  of  larceny  not  material  to  be  proved.     Larceny 

must  be  shown  to  have  been  in  county  where  trial  is  had. 
15.3.   Precise  value  not  material  except  in  prosecutions  under  certain  statutes. 

154.  Main  points  to  be  proved,  —  caption  and  asportation,  with  felonious  intent,  of 

goods  of  person  named  in  indictment. 

155.  Goods  must  be  severed  from  possession  of  owner,  and  be  in  possession  of 

thief. 

156.  Restitution  of  goods  does  not  do  away  the  offence. 

157.  Intent  of  taking  must  be  fraudulent. 

158.  Delivery  by  wife  of  owner  to  the  prisoner  prima  facie  evidence  taking  was  not 

felonious. 

159.  Old  rule  that  subsequent  conversion  by  finder  no  evidence  of  felonious  tak- 

ing, qualified  in  modern  times. 

160.  Obtaining  goods  from  owner  by  stratagem  or  artifice,  evidence  of  felonious 

taking. 

161.  Must  be  proved  that  goods  were  the  property  of  the  o'mier  named,  and  taken 

from  his  possession. 

162.  Where  prisoner  was  bailee,  termination  of  bailment  must  be  proved. 

163.  Wild  animals  and  things  savoring  of  the  realty,  not  subject  of  larceny  at 

common  law.] 

§  150.  The  most  approved  definition  of  this  offence,  at  common 
law,  is  that  wliich  is  given  by  Mr.  East,  namely,  "  the  wrongful 
or  fraudulent  taking  and  carrying  away,  by  any  person,  of  the 
mere  personal  goods  of  another,  from  any  place,  with  a  felonious 
intent  to  convert  them  to  his  (the  taker's)  own  use,  and  make 
them  his  own  property,  without  the  consent  of  the  owner."  ^     But 

^  2  East,  P.  C.  55.3;  2  Euss.  on  Crimes,  gratia,  vcl  ipsins  n^i,  vel  etiam  usih  ejus 

p.  2.     And  see  llamtnon's  case,  2  Lcacii,  possessionisve.     Inst.  lib.  4,  tit.  1,  §  1.     In 

C.  C.  (4th  cd.),  1081),  per  (irosc,  J.     The  Sanders's  edition  of  the  Institutes  (Lon- 

old  ICngiish  lawyers  described  larceny  as  don,  1853),  uhi  supra,  larceny  is  defined  as 

Contrectatio  rei   aliens  fraudulenta,  cum  follows  :  Furtnm  est  contrcctatio  rei  frau- 
aniino  ftirandi.  invit(j  iilo  domino  cujus  res  •  dulosa,  vel  ipsius  rei,  vcl  etiam  usus  ejus 

ilia  fuerit.      Bracton,    lib.  .3,  c.  .32,  §   1.  possessionisve.      To   this    definition,    the 

Flcta  defines   it  in  I'rartDu's  own  words,  learned  editor  has  appended  the  following 

Fieta,  lil).  1,  e.  38,  §  1.     Tlie  Roman  Civil  note:    "The   definition   of   tluft   iiulndcs 

Law  was  larger  than  the  common  law  in  the  term  ronttrctatin  rei,  to  sliow  that  evil 

its  comi)re!ieiisi()M  of  tliis  crime.     Furtum  intent  is  not  sufficient ;  there  m\ist  be  an 

est  contrectatio  fruudulosa,  lucri  faciendi  actual  touching  or  seizing  of  the  thing  j 


PAET  v.]  LARCENY.  127 

even  this  definitiou,  though  admitted  by  Parke,  B.,  to  be  the  most 
complete  of  any,  was  thought  by  him  to  be  defective,  in  not  stating 
what  was  the  meaning  of  the  word  '•'■felonious^'''  in  that  connection  ; 
which  he  proceeded  to  say,  "  might  be  explained  to  mean  that 
there  is  no  color  of  right  or  excuse  of  the  act "  ;  adding  that  the 
"  intent''''  must  be  to  deprive  the  owner  not  temporarily,  but  per- 
manently, of  his  property.^ 

§  151.    In  the  indictment  for  this  offence,  it  is  alleged,. that  A.  B. 

(the  prisoner),  on ,  at ,  such  and  such  goods  (specifying 

the  tilings  stolen  and  their  value),  of  the  goods  and  chattels  of  one 
C.  D.  then  and  there  being  found,  feloniousli/  did  steal,  take,  and 
carry  atvay.  And  ordinarily  these  allegations  are  material  to  be 
proved  by  the  prosecutor. ^ 

§  152.  The  mere  name  of  the  prisoner,  as  we  have  already  seen,^ 
needs  no  proof,  unless  it  be  put  in  issue  by  a  plea  in  abatement. 
It  is  only  necessary  to  show  his  identity  with  the  person  who  com- 
mitted the  offence.  Nor  is  the  time  material  to  be  proved,  unless 
the  prosecution  is  limited  by  statute  to  a  particular  time.  But 
ihQ  place  must  be  so  far  proved,  as  to  show  that  the  larceny  was 
committed  in  the  county  in  which  the  trial  is  had.^  And  in  legal 
contemplation,  where  goods  are  stolen  in  one  county  and  carried 
into  another,  whether  immediately  or  long  afterwards,  the  offence 

fraudulosa,  to  show  that  the  thing  must  be  mittere,  si  se  intelligant  id  invito  domino 
seized  with  evil  intent,  and  ivi,  usus,  posses-  facere,  eumque,  si  intellexisset,  non  per- 
sionis,  to  show  the  ditferent  interests  in  a  missurum.  Inst.  ub.  sup.  §  7.  [*A  man 
thing  that  might  be  the  subject  of  theft,  is  not  to  be  convicted  of  larceny  if  doubt- 
It  might  seem  that  it  would  have  made  the  ful  whether  accessory  before  or  after  the 
definition  more  complete  to  have  said  con-  fact.  Keg.  v.  Munday,  2  F.  &  F.  170.] 
trectatio  rei  aliena;.  Perhaps  the  word  ali-  i  Regina  i'.  Holloway,  2  C.  &  K.  942, 
ence  was  left  out  because  it  was  quite  pos-  946  ;  1  Denison,  C.  C.  370;  13  Jur.  86; 
sible  that  the  domnuis  or  real  owner  of  a  McDaniel's  case,  8  Sm.  &  M.  401. 
thing  should  commit  a  theft  in  taking  it  ^  [*  "  Stealing  "  imports  larceny  with- 
from  the  possessor,  as,  for  instance,  in  the  out  the  words  "  take  and  carry  away." 
case  of  a  debtor  stealing  a  thing  given  in  Gay  v.  State,  20  Texas,  .o04.  An  indict- 
pledge  ;  and  yet  the  res  was  scarcely  aliena  ment  for  an  attempt  to  commit  larceny 
to  the  dominus.  Many  texts,  after  the  which  charges  the  prisoner  with  attempt- 
words  contrectatio  fraudulosa,  add  lucri  fact-  ing  to  steal  "  the  goods  and  chattels  of 
endi  gratia,  i.  e.  with  a  design  to  profit  by  A.,"  without  further  specifying  the  goods 
the  act,  whether  the  profit  be  that  of  gain-  intended  to  be  stolen,  is  sufficiently  certain. 
ing  a  benefit  for  one's  self,  or  that  of  Reg.  v.  Johnson,  10  Cox,  C.  C.  13.  A 
inflicting  an  injury  on  another.  These  thief  and  a  receiver  of  stolen  goods  may 
words  are  found  in  the  passage  of  the  Di-  be  jointly  indicted.  Comnlonwealth  v.  Ad- 
gest  (xlvii.  2,  1,  3),  from  which  this  defi-  ams,  7  Gray,  43.] 

nition  of  theft  is  taken,  but  the  authority  ^  Supra,  §  22.     [*  An  indictment  stat- 

of  the  manuscripts  seems   against  admit-  ing  the  ownership  to  be  in  a  firm,  giving 

ting  them  here."  the  firm  name  only,  is  sufficient.     People 

Even  the  misuse  of  a  thing  bailed  was  v.  Ah  Sing,  19  Cal.  598.] 

sometimes  criminal.     Placuit  tamen,  eos,  *  For  the  reason  of  this  ancient  rule,  see 

qui    rebus    commodatis     aliter    uterenter  Co.  Litt.  125  a;    Stephen  on  Plead.  298- 

quam  utendas  acceperint,  ita  furtum  com-  302. 


128 


LAW   OF   EVIDENCE   IN    CRIMINAL   CASES. 


[part  V 


may  be  prosecuted  in  either  county  ;  for  every  asportation  is  in 
law  a  new  caption.^  This  rule,  however,  is  limited  to  simple  lar- 
ceny ;  for  if  it  be  a  compound  offence,  such  as  stealing  from  a  store 
or  dwelling-house,  or  if  it  be  robbery  from  the  person,  that  offence 
must  be  laid  and  proved  in  the  county  where  the  store  or  house 
was  situated,  or  where  the  person  was  assaulted  and  robbed.^ 
Whether  the  indictment  for  larceny  can  be  supported,  where  the 
goods  are  proved  to  have  been  originally  stolen  in  another  State, 
and  brought  thence  into  the  State  wliere  the  indictment  is  found, 
is  a  point  on  which  the  decisions  are  contradictory.^     But  if  the 


1  1  Hale,  p.  C.  507,  508 ;  Anon.  4  Hen. 
7,  5  6,  6  «  ;  Bro.  Ahr.  Coron.  p.  171  ;  Com- 
monwealth V.  Dewitt,  10  Mass.  154  ;  Cous- 
in's case,  2  Leigh,  708  ;  The  State  v.  Doug- 
lass, 17  Maine,  193 ;  The  State  v.  Somer- 
ville,  21  Maine,  14,  19  ;  Commonwealth  v. 
Eand,  7  Met.  475.  [*  Myers  v.  People,  26 
HI.  17.3  ;  Haskins  v.  People,  16  N.  Y.  .344.] 
That  tlie  lapse  of  time  between  the  first 
takini;;  and  the  carrying  into  another  coun- 
ty, is  not  material.  Sec  Parkins's  case,  1 
Moody,  C.  C.  45 ;  1  Lewin,  C.  C.  316. 

2  1  "Hale,  P.  C.  507,  508 ;  2  Hale,  P.  C. 
163 ;  1  Hawk.  P.  C.  ch.  33,  §  9  ;  2  Russ. 
on  Crimes,  116. 

8  In  the  affirmative,  sec  Commonwealth 
V.  Culiius,  1  Mass.  116;  Commonwealth  w. 
Andrews,  2  Mass.  14  ;  Commonwealth  v. 
Rand,  7  Met.  475,  477  ;  The  State  v.  VAXis, 
3  Conn.  185;  Hamilton's  case,  11  Ohio, 
435 ;  [*  Watson  v.  State,  36  Miss.  593.] 
In  th(!  negative  are  [*  Maynard  v.  State, 
14  Ind.  427  ;  State  i'.  Keonnals,  14  La. 
An.  278 ;]  Simmons  v.  The  Common- 
wealth, 5  Binn.  617;  1  Leading  Crim. 
Cases,  212;  The  People  v.  Gardiner,  2 
Johns.  477  ;  The  Peo]jle  v.  Schenck,  Id. 
479.  In  New  York,  the  rule  lias  since 
been  changed  by  statute,  upon  which  the 
case  of  The  People  v.  Burke,  11  Wend. 
129,  was  decided.  A  similar  statute  has 
been  enacted  in  Ahihama.  The  State  v. 
Seay,  3  Stewart,  123;  Murray  v.  The 
State,  18  Ala.  727.  And  see  Simpson's 
case,  4  IIuin])h.  456;  Rex  v.  Prowes,  1 
Moody,  C.  C.  .349.  But  in  Rogina  v. 
Madge.  9  C.  &  P.  29,  which  was  decided 
upon  the  authority  of  Rex  v.  Prowes,  the 
learned  Judge  ajjparcntly  doubted  the 
soundness  of  that  case,  in  priuciple.  [In 
the  case  of  State  v.  Bartlett,  U  Vt.  650, 
where  oxen  were  stolen  in  Canada  and 
brought  into  Vermont,  a  conviction  of  hir- 
ceny  in  the  latter  State  was  sustained. 
But  see  Commonwealth  v.  Uprichard,  3 
Gray,  434.  In  that  case  the  theft  was 
committed  in  one  of  the  British  Provinces, 
and  the  goods  brought  into  Massachusetts 


by  the  thief,  who  was  there  convicted  of 
larceny.  The  Court,  however,  ordered  a 
new  trial,  on  the  ground  that  the  facts  did 
not  sustain  such  a  charge ;  and  Shaw,  C. 
J.,  after  stating  that  the  main  argument 
for  the  conviction  rested  on  the  rule,  that 
when  property  has  been  stolen  in  one 
county  and  carried  by  the  thief  into  an- 
other county,  he  may  be  indicted  in  either, 
said,  "But  in  principle  these  cases  are  not 
strictly  analogous.  If  the  offence  is  com- 
mitted anywhere  in  the  realm  of  England, 
in  whatever  county,  the  same  law  is  vio- 
lated, the  same  punishment  is  due,  the 
rules  of  evidence  and  of  law  governing 
every  step  of  the  proceedings  are  the  same, 
and  it  is  a  mere  question  where  the  trial 
shall  be  had.  But  the  trial,  wherever  had, 
is  exactly  the  same,  and  the  results  are  the 
same.  A  conviction  or  acquittal  in  any 
one  county  is  a  bar  to  any  indictment  in 
every  other ;  so  that  the  question  is  com- 
paratively immaterial It  has,  then, 

been  argued  that  the  same  rule  ought  to  ap- 
j)ly  to  foreign  governments  as  to  tlie  sev- 
eral States  of  the  Union Perhaps 

if  it  were  a  new  question  in  this  Common- 
wealth, this  argument  might  have  some 
force  in  leading  to  another  decision  in  re- 
gard to  the  several  American  States.  But 
supposing  it  to  be  established  by  these  au- 
thorities as  a  rule  of  law  in  this  Common- 
wealth, that  goods  stolen  in  another  State 
and  brought  by  the  thief  into  this  State, 
are  to  be  regarded  technically  as  goods 
stolen  in  this  Commonwealth,  we  think 
this  forms  no  sufficient  ground  for  carry- 
ing the  rule  further  and  applying  it  "to 
goods  stolen  in  a  foreign  territory,  under 
the  jurisdiction  of  an  independent  govern- 
ment, between  which  and  our  own  there  is 
no  other  relation  than  that  affected  by  the 
law  of  nations.  Laws  to  punish  crimes 
are  essentially  local,  and  limited  to  the 
boundaries  of  the  States  prescribing  them. 
Indeed,  this  case,  and  tlie  cases  cited,  pro- 
ceed on  the  ground  that  the  goods  were 
actually  stolen  in  this  State It  is 


TART  v.]  LARCENY  129 

original  taking  were  such  as  the  common  law  does  not  take  cog- 
nizance of,  as,  if  the  goods  were  taken  on  the  high  seas,  an  indict- 
ment at  common  law  cannot  be  sustained  in  any  county.^  It  may 
here  be  added,  that  in  order  to  render  the  oifence  cognizable  in  the 
county  to  which  the  goods  are  removed,  it  is  necessary  that  they 
continue  specifically  the  same  goods ;  for  if  their  nature  be 
changed  after  they  are  stolen  in  one  county,  and  before  they  are 
removed  to  another,  the  offence  in  the  latter  county  becomes  a 
new  crime,  and  must  be  prosecuted  as  such.  Thus,  where  a  brass 
furnace,  stolen  in  one  county,  was  there  broken  in  pieces,  and  the 
pieces  were  carried  into  another  county,  in  which  latter  county  the 
prisoner  was  indicted  for  larceny  of  a  brass  furnace  there  ;  he  was 
acquitted  upon  this  evidence  ;  for  it  was  not  a  brass  furnace^  but 
only  broken  pieces  of  brass,  that  he  had  in  that  county .^  So,  if  a 
joiiit  larceny  be  committed  in  one  county  where  the  goods  are 
divided,  and  each  thief  takes  his  separate  share  into  another 
county,  this  evidence  will  not  support  a  joint  prosecution  in  the 
latter  county,  for  there  the  larceny  was  several.^ 

§  153.  Nor  is  it  necessary  to  prove  the  value  of  the  goods  stolen, 
except  in  prosecuting  under  statutes  which  have  made  the  value 
material,  either  in  constituting  the  offence,  or  in  awarding  the 
punishment.*  But  the  goods  must  be  shown  to  be  of  some  value,^ 
at  least  to  the  owner  ;  such  as  reissuable  bankers'  notes,  or  other 
notes  completely  executed,  but  not  delivered  or  put  in  circula- 
tion ;  ^  though  to  third  persons  they  might  be  worthless.  It  is  not 
essential  to  prove  a  pecuniary  value,  capable  of  being  represented 
by  any  current  coin,  or  of  being  sold  ;  it  is  sufficient  if  it  be  of 
valuable  or  economical  utility  to  the  general  or  special  owner  J 

only  by  assuming    that   bringing  stolen  ed.)  680.     [*  Commonwealth  w.  Kiggs,  14 

goods   from    a   foreign  country  into    this  Gray,  376.] 

State  makes  the  act  larceny  here,  that  this  ^    Rex  v.  Clark,  Russ.  &  Ry.  181  ;   2 

allegation  can  be  sustained;   but  this  in-  Leach,   C.   C.   (4th   ed.)   1036;    Ranson's 

Tolves  the  necessity  of  going  to  the  law  in  case,  Id.  1090  ;  Vyse's  case,  1  Moody,  C. 

force  in  Nova  Scotia  to  ascertain  whether  C.  218;  2  Russ  on  Crimes,  79,  note  (g) ; 

the  act  done  there  was  felonious,  and,  con-  Commonwealth  v.  Rand,  7  Met.  475.     See 

sequently,  whether  the  goods  were  stolen  ;  Regina  v.  Powell,  14  Eng.  Law  &  Eq.  R. 

80  that  it  is  by  the  combined  operation  of  575  ;  2  Denison,  C.  C.  403. 

the  force  of  both  laws  that  it  is  made  fel-  ■?  Regina  v.  Bingley,  5   C.  &  P.  602; 

ony  here.'"]  Regina  v.  Morris,  9  C.  &  P.  347 ;  Rex  v. 

1  3  Inst.  113;  2  Russ.  on  Crimes,  119.  Clark,  Russ.  &  Ry.  181.     See  Regina  v. 

2  Rex  ;;.  Halloway,  1  C.  &  P.  127.  Perry,  1  Denison,  C.  C.  69  ;  1  C.  &  K. 

3  Rex  V.  Barnett,  2  Russ.  on  Crimes,  725;  Regina  v.  Watts,  18  Jur.  192;  24 
117.  Eng.  Law  &  Eq.  R.  573;  6  Cox,  C.   C. 

*  See  Hope  v.  The  Commonwealth,  9  304.      [In    an    indictment   for    receiving 

Met.  134,  [and  State  v.  Arlin,  7  Foster  stolen  goods,  it  is  not  necessary,  in  Rhode 

(N.  H.),  116.]  Island,  to  allege  the  value  of  the  goods 

5   Phipoe's   case,  2   Leach,  C.  C.  (4th  specifically.    State  r.  Watson,  3  R.L  114.] 

VOL.  III.  9 


130  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  ["PART  V. 

If  the  subject  is  a  bank-note,  the  stealing  of  which  is  made  larceny 
by  statute,  it  must  be  proved  to  be  genuine  ;  ^  and  if  it  be  a  note 
of  a  bank  in  another  State,  the  existence  of  the  bank  must  also  be 
proved  ;  and  this  may  be  shown,  presumptively,  by  evidence,  that 
notes  of  that  description  were  actually  current  in  the  country .^ 

§  154.  But  the  main  points  necessary  to  be  proved  in  every  in- 
dictment for  this  crime,  are,  1st,  the  caption  and  asiyortation  ;  2dly, 
with  a  felonious  intent ;  3dly,  of  the  goods  and  chattels  of  another 
person  named  or  described  in  the  indictment.  And  first,  of  the 
caption  and  asportation.  This,  in  the  sense  of  the  law,  consists 
in  removing  the  goods  from  the  place  where  they  were  before, 
though  they  be  not  quite  carried  away  ;  as  if  they  be  taken  from 
one  room  into  another  in  the  owner's  house,  or  removed  from  a 
trunk  to  the  floor,  or  from  the  head  to  the  tail  of  a  wagon  ;  or  if 
a  horse  be  taken  in  one  part  of  the  owner's  close  and  led  to  anoth- 
er, the  thief  being  surprised  before  his  design  was  entirely  accom- 
plished.2  If  it  appear  that  every  part  of  the  thing  taken  was  re- 
moved from  the  space  which  that  part  occupied,  though  the  whole 
thing  were  not  removed  from  the  whole  space  which  the  whole 
thing  occupied,  it  is  a  sufficient  asportation.^  On  this  ground,  in 
the  instances  just  mentioned,  it  was  thus  held.  So,  where  the 
prisoner  had  lifted  a  bag  from  the  bottom  of  the  boot  of  a  coach, 
and  was  detected  before  he  got  it  out  of  the  boot,  it  was  held  a 
complete  asportation.^  And  it  was  so  held,  where  the  prisoner 
ordered  the  hostler  to  lead  from  the  stable  and  to  saddle  another 
man's  horse,  representing  it  as  his  own,  but  was  detected  while 
preparing  to  mount  in  the  yard  ;  ^  for  in  each  of  these  cases  the 
prisoner  had,  for  the  moment,  at  least,  the  entire  and  absolute 
possession  of  the  goods.  But,  on  the  other  hand,  where  the  pris- 
oner was  indicted  for  stealing  four  pieces  of  linen  cloth,  and  it  was 
proved  that  they  were  packed  in  a  bale,  which  was  placed  length- 
wise in  a  wagon,  and  that  the  prisoner  had  only  raised  and  set  the 

1  The  State  v.  Tilley,  1  Nott  &  McC.  9  ;  Law  &  Eq.  R.  548 ;  1  Pearce,  C.  C.  21. 

The  State  v.  Cassados',  Id.  91  ;  The  State  [*  State  v.  Gazell  30  Mis.  92.] 

V.  AIl.ii,  K.  M.  Charlt.  518.  *  2  Russ.  on  Crimes,  6. 

^  I   Hale,  P.  C.  508;  3  Inst.  108;  Rex  &  Rex  v.  Walsh,  1  Moody,  C.  C.  14. 

V.  Simson,  J.  Kely.  31  ;  Rex  v.  Coslet,  1  ^  Hex  v.  Pitman,  2  C.  &  P.  423.     Al- 

Lcach,  C.  C.  (4tli  cd.)  236 ;  2  East,  P.  C.  lowinj^  a  trunk  of  stolen  goods  to  be  sent 

556  ;   Rex  r.  Aniier,  6  C.  &  P.  344  ;  The  as  part  of  his  higfrage  on  hoard  a  vessel  in 

State    11.    Wilson,    Coxc,    439  ;     Rex     v.  which  the  prisoner  had  taken  passage,  has 

Walsh,  1  Moody,  0.  C.  14.     And  sec  Ali-  been  held  a  sufticient  rece])tion  by  him  of 

son's  Crim.  Law  of  Scotland,  p]).  265-270.  the  stolen  goods.     The  State!;.  Seovcl,  1 

■'  The  People  V.  .lohnsun,  4  Donio,  364  ;  Rep.  Const  Ct.  274. 
Rcgina  v  Manning,  17  Jur.  28;  14  Eng. 


PART  v.]  LARCENY.  131 

bale  on  one  end,  in  the  place  where  it  lay,  and  had  cut  the  wrap- 
per down,  but  had  not  taken  the  linen  out  of  the  bale  ;  this  was 
resolved,  for  the  above  reason,  to  be  no  larceny.^ 

§  155.  It  must  also  be  shown  that  the  goods  were  severed  from 
the  possession  or  custodi/  of  the  owner  and  in  the  possession  of  the 
thief,  though  it  be  but  for  a  moment.^  Thus,  where  goods  in  a 
shop  were  tied  by  a  string,  the  other  end  of  which  was  fastened  to 
the  counter,  and  the  thief  took  the  goods  and  carried  them  towards 
the  door  as  far  as  the  string  would  permit,  and  was  then  stopped, 
this  was  held  not  to  be  a  severance  from  the  owner's  possession, 
and  consequently  no  felony.^  And  the  like  decision  was  given, 
where  one  had  his  keys  tied  to  the  strings  of  his  purse,  in  his 
pocket,  and  the  thief  was  detected  with  the  purse  in  his  hand, 
which  he  had  taken  out  of  the  pocket,  but  it  was  still  detained  by 
the  keys  attached  to  the  strings  and  hanging  in  the  pocket.*  Upon 
the  same  principle,  in  an  indictment  for  robbery,  where  the  prose- 
cutor's purse,  of  which  the  prisoner  attempted  to  rob  him,  was 
tied  to  his  girdle,  and  in  the  struggle  tlie  girdle  broke,  and  the 
purse  fell  to  the  ground,  but  was  never  touched  by  the  prisoner,  it 
was  ruled  to  be  no  taking.^  But  wliere  the  prisoner  snatched  at 
the  prosecutor's  ear-ring,  and  tore  it  from  her  ear,  but  in  the 
struggle  it  fell  into  her  hair,  where  she  afterwards  found  it,  this 
was  held  a  sufficient  taking,  for  it  was  once  in  the  prisoner's  pos- 
session.^ 

§  15B.  The  crime  being  completed  by  the  taking  and  asporta- 
tion with  a  felonious  intent,  though  the  possession  be  retained  but 
for  a  moment,  it  is  obvious  that  restitution  of  the  goods  to  the  owner, 
though  it  be  the  result  of  contrition  in  the  thief,  does  not  do  away 
the  offence.  Thus,  if  one,  having  taken  another's  purse,  but  find- 
ing nothing  in  it  worth  stealing,  restores  it  to  the  owner,  or  throws 
it  away  ;  or,  the  contents  being  valuable,  hands  it  back  to  the 
owner,  saying,  "  if  you  value  your  purse,  take  it  back  again  and 
give  me  the  contents  "  ;  the  taking,  and  consequently  the  offence, 
is  nevertheless  complete.'^ 

1  Cherry's  case,  2  East,  P.  C.  556.     See         *  Wilkinson's  case,  1  Hale,  P.  C.  508. 
Regina  v.  Wallis,  3  Cox,  C.  C.  67.  ^  1   Hale,  P.  C  533;  3  Inst.  69.     And 

2  Where  the  prosecutor's  servant  took  see  Lapier's  case,  2  East,  P.  C.  557 ;  1 
fat  from  his  lot't  and  placed  it  on  a  scale  in     Leach,  C.  C.  (4th  cd.)  360. 

his   candle-room,    endeavoring    to    induce  '^  Rex  v.  Lapier,  2  East,  P.  C.  557  ;  i 

the  prosecutor  to  buy  it  as  fat  sent  by  the  Leach,   C.   C.    (4th  ed.)   360;    Kegina  v. 

butcher;  this  was  held  a  sufficient  taking  Simpson,  6  Cox,  C.  C.  422  ;  29  Eng.  Law 

to  constitute  larceny.     Regina  v.   Hall,  2  &  Eq.  R.  530. 

C.  &K.  947;  1  Denison,  C.  C.  38L  '    1    Hale,  P.   C.    533;    3  Inst.  69;    2 

8  Anon.  2  East,  P.  C.  556.  East,  P.  C.  557. 


132  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

§  157.  In  the  second  place,  as  to  i\\Q  felonious  intent.  And  here 
a  distinction  is  to  be  observed  between  larceny  and  mere  trespass^ 
on  the  one  hand,  and  malicious  mischief  on  the  other.  If  the  tak- 
ing, though  wrongful,  be  not  fraudulent,  it  is  not  larceny,  but  is 
only  a  trespass  ;  and  ought  to  be  so  regarded  by  the  Jury,  who 
alone  are  to  find  the  intent,  upon  consideration  of  all  the  circum- 
stances. Thus,  if  it  should  appear  that  the  prisoner  took  the  pros- 
ecutor's goods  openly,  in  his  presence  or  the  presence  of  other  per- 
sons, and  not  by  robbery  ;  or,  having  them  in  possession,  avowed 
the  fact  before  he  was  questioned  concerning  them  ;  or  if  he  seized 
them  upon  a  real  claim  of  title  ;  or  took  his  tools  to  use,  or  his 
horse  to  ride,  and  afterwards  returned  them  to  the  same  place,  or 
promptly  informed  the  owner  of  the  fact ;  or,  having  urgent  and 
extreme  necessity  for  the  goods,  he  took  them  against  the  owner's 
will,  at  the  same  time  tendering  to  him,  in  good  faith,  their  full 
value  in  money  ;  or  took  them  by  mistake  arising  from  his  own  neg- 
ligence ;  these  circumstances  would  be  pregnant  evidence  to  the 
Jury  that  the  taking  was  without  a  felonious  intent,  and  therefore 
but  a  mere  trespass.^  On  the  other  hand,  where  the  prisoner's 
sole  object  was  to  destroy  the  property,  from  motives  of  revenge 
and  injury  to  the  owner,  and  without  the  expectation  of  benefit  or 
gain  to  himself,  this  also  is  not  larceny,  but  malicious  mischief.^ 
For  it  seems  to  be  of  the  essence  of  the  crime  of  larceny,  that  it  be 
committed  lucri  causd,  or  with  the  motive  of  gain  or  advantage  to 
the  taker  ;  though  it  is  not  necessary  that  it  be  a  pecuniary  advan- 
tage ;  it  is  sufficient  if  any  other  benefit  to  him  or  to  a  third  per- 
son, is  expected  to  accrue.  Thus,  where  one  clandestinely  took  a 
horse  from  a  stable  and  backed  him  into  a  coal-pit  a  mile  off, 
thereby  killing  him,  that  his  existence  might  not  contribute  to  fur- 
nish evidence  against  another  person  who  was  charged  with  steal- 
ing the  horse  ;  this  was  deemed  a  sufficient  lucrum  or  advantage 
to  constitute  the  crime  of  larceny.^     So,  if  the  motive  be  to  procure 

1  1  Hale,  P.  C.  509 ;  2  East,  P.  C.  661  the  property  is  taken  away,  with  intent  to 

-663.     Where  the  f;oo(ls  were  taken  un-  detain  it  from  the  owner,  the  offence  will 

der  a  claim  of  ri^'ht,  if  the  jirisoiier  aj)-  amount  to  larceny,  tlioii<rh  the  object  was 

pears  to  have  had  any  fair  color  of  title,  or  to  destroy  it,  which  is  accomplished.     The 

if  the  title  of  the  i)rosccutor  be  brought  offence  is  reduced  to  malicious  mischief, 

into  doubt  at  all,  the  Court  will  direct  an  only   where   the    property   is   maliciously 

acquittal;  it  beinjr  improper  to  settle  such  destroyed  without   beinij   removed.      Ali- 

disputes    in    a   form    of  process    affcctinj^  son's  Crim.  Law  of  Scotland,  p.  27.1. 

men's   lives,    liberties,   or   reputation.      2  *  Rex  v.  Cabbage,  Kuss.  «&  Ily.  292;  1 

East,   P.   (;.   6.50.      [*  State  v.  Bond,   8  Leading  Crim.   Cases,  436  ;    2    Russ.   on 

Clarke  (Iowa),  .')40.]  Crimes,  p.  3.     But  see  Kegina  )'.  Godfrey, 

-    Regina  v.  Godfrey,  8  C.  &  P.  563,  per  8    C.    &    P.    553,    where   Lord    Abinger 

Lord  Abinger.     In  the  law  of  Scotland,  if  seemed   to   think  that   the  gain  must  bo 


PART  v.]  LARCENY.  133 

personal  case,  or  a  diminution  of  labor  to  the  taker  ;  as,  where  a 
servant,  by  means  of  false  keys,  took  his  master's  provender  and 
gave  it  to  his  horses  with  that  intent ;  this  also  has  been  held  suffi- 
cient.^ But  where  a  carrier  broke  open  a  parcel  intrusted  to  him, 
and  took  therefrom  two  letters  which  he  opened  and  read  from 
motives  of  personal  curiosity,  or  of  political  party  zeal,  and  to  pre- 
vent them  from  arriving  in  due  season  at  their  destination,  this, 
however  illegal,  was  deemed  no  felony .^ 

§  158.  If  it  appear  that  the  goods  were  delivered  to  the  prisoner 
hy  the  tvife  of  the  owner ^  this  is  primd  facie  evidence  that  the  tak- 
ing was  not  felonious  ;  for  as  the  wife  has  no  present  legal  title  to 
the  goods  of  the  husband,  but  only  a  contingent  expectancy  of  ti- 
tle, she  can  exercise  no  control  over  them,  except  as  his  agent ; 
and  such  agency,  and  the  consent  of  the  husband,  may  generally 
be  presumed,  in  the  absence  of  other  circumstances,  where  the 
prisoner,  acting  in  good  faith,  received  the  goods  at  her  hands.^ 
At  most,  in  such  a  case,  he  would  be  but  a  mere  trespasser.  But 
this  evidence  would  be  rebutted  by  showing  that  the  prisoner  act- 
ed in  bad  faith,  and  with  knowledge  that  the  husband's  consent 
was  wanting,  or  with  reason  to  presume  that  the  taking  was  against 
his  will  ;  as,  if  he  joined  with  her  in  clandestinely  taking  the  goods 
away  ;  or  if  he  take  both  the  wife  and  the  goods  ;  or  if  she,  being 
an.  adulteress,  living  with  the  prisoner,  bring  the  husband's  goods 
alone  to  the  prisoner,  he  knowingly  receiving  them  into  his  per- 
sonal custody  and  possession.* 

§  159.  If  the  goods  were/o^mfZ  by  the  prisoner,  the  old  rule  was, 
that  his  subsequent  conversion  of  them  to  his  own  use  was  no  evi- 

expected  to  accrue  to  the  party  himself,  adultery,  in  carrying  away  the  goods  of 

[*  But  it  is  held  under  the  statute  in  In-  her  husband  without  the  knowledge  and 

diana  that  an  intent  to  defraud  the  own-  consent  of  the  latter ;  though  with  intent 

er,  though  without  benefit  to  the  thief,  is  to  deprive  the  latter  of  his  property,  he 

larceny.     Keely  i'.  State,  14  Ind.  36  ;  also  cannot  be  convicted  of  stealing  the  goods. 

Hamilton  v.  State,  35  Miss.  214.]  Reg.  v.  Avery,  5  Jur.  N.  S.  .577.     See  also 

1  Rex  V.  Morfit,  Russ.  &  Ry.  C.  C.  307  ;  Reg.  v.  Berry,  5  Jur.  N.  S.  228.] 

1  Leading  Crim.  Cases,  438 ;  2  Russ.  on  *  Ibid. ;  Regina  c.  Featherstone,  6  Cox, 

Crimes,  p.  3;  Regina  v.  Handley,  Car.  &  C.  C.  376;  1  Leading  Crim.  Cases,  199; 

Marshm.  .547 ;  Regina  v.  Privett,  2  C.  &  26  Eng.  Law  &  Eq.  R.  570 ;  Rex  v.  Tol- 

K.  114;  1  Denison,  C.  C.  143  ;  2  Cox,  C.  free,    1    Moody,    C.    C.   243;    Regina    v. 

C.  40.     And  see  Reoina  i;.  Jones,  1  Deni-  Tollett,  Car.  &  Marshm.   112;  Regina  v. 

Bon,  C.  C.  188;  2  C.'&  K.  236  ;  2  Cox,  C.  Rosenberg,  1   Car.  &  K.  233.     And  see  I 

C.  6 ;  Regina  v.  Richards,  1  C.  &  K.  532 ;  Russ.   on    Crimes,   22,   23 ;    2    Russ.    on 

The  State  v.  Hawkins,  8  Porter,  461.  Crimes,  87  ;  Regina  v.  Thompson,  14  Jur. 

2  Regina  v.  Godfrey,  8  C.  &  P.  563.  488 ;   I  Denison,  C.  C.  549 ;  4  Cox,  C.  C. 

3  The  People  v.  Schuyler,  6  Cowen,  191;  Temple  &  Mew.  C.  C.  294  ;  1  Eng. 
572;  Dalton's  Just.  504.  [*  If  a  person  Law  &  Eq.  R.  .542.  [See  Regina «;.  Avery, 
merely  assist  a  maiTied  woman  who  has     22  Law  Reporter,  166.] 

not  committed   or    intended    to    commit 


134  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

deuce  of  a  felonious  intent  in  the  taking.^  But  tins  rule,  in  mod- 
ern times,  is  received  with  some  qualifications.  For  if  the  finder 
knows  who  is  the  owner  of  the  lost  chattel,  or  if,  from  any  mark 
upon  it,  or  from  the  circumstances  under  which  it  was  found,  the 
owner  could  reasonably  have  been  ascertained,  then  the  fraudulent 
conversion  of  it  to  the  finder's  use  is  sufficient  evidence  to  justify 
the  Jury  in  finding  the  felonious  intent,  constituting  a  larceny .^ 
On  this  ground,  hackney-coachmen  and  passenger-carriers  have 
been  found  guilty  of  larceny,  in  appropriating  to  their  own  use  the 
parcels  and  articles  casually  left  in  their  vehicles  by  passengers  ;  ^ 
servants  have  been  convicted  for  the  like  appropriation  of  money 
or  valuables,  found  in  or  about  their  master's  houses  ;  *  and  so  it 
has  been  held  where  a  carpenter  converted  to  his  own  use  a  sum 
of  money  found  in  a  secret  drawer  of  a  bureau,  delivered  to  him  to 
be  repaired.^  In  a  word,  the  omission  to  use  the  ordinary  and 
well-known  means  of  discovering  the  owner  of  goods  lost  and  found, 
raises  a  presumption  of  fraudulent  intention,  more  or  less  strong, 
against  the  finder,  which  it  behooves  him  to  explain  and  obviate  ; 
and  this  is  most  readily  and  naturally  done  by  evidence  that  he 
endeavored  to  discover  the  owner,  and  kept  the  goods  safely  in  his 
custody  until  it  was  reasonably  supposed  that  he  could  not  be 
found  ;  or  that  he  openly  made  known  the  finding,  so  as  to  make 
himself  responsible  for  the  value  to  the  owner  when  he  should  ap- 
pear.*^    In  cases  of  this  class,  it  is  material  for  the  prosecutor  to 

1  3  Inst.  108.  owner.     It  was  held,  that'the  prisoner  was 

2  Regina  v.  Thurbom,  1  Denison,  C.  C.  guilty  of  larceny,  as  the  purse  was  not, 
388;  2  C.  &  K.  831  ;  1  Temple  &  Mew.  strictly  speaking,  lost  property,  and,  there- 
C.  C.  67;  Regina  v.  Preston,  2  Denison,  fore,  it  was  not  necessary  to  inquire  whether 
C.  C.  353 :  5  Cox,  C.  C.  390  ;  8  Eng.  Law  the  prisoner  had  used  reasonable  means  to 
&  Eq.  R.  589  ;  Merry  v.  Green,  7  M.  &  W.  find  the  owner.  In  Regina  v.  Pierce,  6 
6-J3;  The  State  v.  Weston,  9  Conn.  527  ;  Cox,  C.  C.  117,  it  was  held,  that  the  doc- 
llegina  v.  Rilev,  17  Jur.  189  ;  1  Pearce,  C  trine  of  lost  property  did  not  apply  to  the 
C.144;  14  Eng.  Law  &  E(i.  R.  .544.  But  baggage  of  a  passenger,  left  by  him  by 
see  The  People  v.  Coijdeli,  1  Hill,  94.  mistake  in  a  railway  carriage,  and  if  a  ser 

■*  Rex  V.  Lamb,  2  East,  P.  C.  664 ;  Rex  vant  of  the  comi)any  find  it  there,  and  do 

V.  Wvnne,  lb. ;  Rex  v.  Sears,   I  Leach,  C.  not  take  it  to  tlie  station-house,  or  to  a  su- 

C.  (4'th  ed.)  415,  n.     There  is  a  clear  dis-  perior  ofiicer,  bnt  a])iiroi)riates  it  to  hi.s  own 

tinction  between  property  mislaid,  that  is,  use,  he  is  guilty  of  larceny.     See  l{cgina 

put  down  and  left  in  a  place  to  which  the  v.  Dixon,  25  Law  J.  Rep.  (n.  s.),  M.  C. 

owner  would  be  likclv  to  return  for  it,  and  39;  36  Eng.  Law  &  Va[.  R.  597  ;   [Regina 

proi)ertv  lost.     In  Regina  v.  West,  6  Cox,  v.   Davis,   36  Eng.    Law  &   Eq.    K.   607  ; 

C.  C.  4'l5;    29  Eng.  Law  &  Eq.  R.  525,  a  The  People  v.  Swan,.  1   Parker,  C.  li.  I ; 

purcha.ser  by  mistake  left  his  jiurse  on  the  The  People  v.  Kaatz,  3  Id.  129.] 

pri.soner'.s  st.'dl  in  a   market,  witliout  the  *  Regina  r.  Kerr,  8  C.  &  P.  176. 

prisoner  or  himself  knowing  it.     The  pris-  ^  Cartwright  v.  Green,  8  Ves.  405;   2 

oner  afterwards  .seeing  it  there,  but  not  at  Leach,  C.  C.  (4th  ed.),  952. 

the  time  knowing  whose  it  was,  apjiropri-  «2    East,    P.    C.    665;     Tyler's   case, 

ated  it,  and  siibse<|uently  denied  all  know  1-  Brecse,   227;    The   State  v.  Ferguson,   2 

edge  of  it  when  inquiry  was  made  by  the  McMullan,  502. 


PAKT  v.]  LARCENY.  135 

show  that  the  felonious  intent  was  contemporaneous  with  the  find- 
ing ;  for  if  the  prisoner,  upon  finding  the  article,  took  it  with  the 
intention  of  restoring  it  to  the  owner  when  discovered,  but  after- 
wards wrongfully  converted  it  to  his  own  use,  this  is  merely  a 
trespass,  and  not  a  felony .^  And  the  principle  is  the  same,  where 
he  came  to  the  possession  in  any  other  lawful  manner  ;  as,  for  ex- 
ample, where  the  goods  were  inadvertently  left  in  his  possession, 
or  where  he  took  the  goods  for  safety,  during  a  conflagration  or 
the  like,  but  afterwards  wrongfully  concealed  and  appropriated 
them  to  his  own  use.^ 

§  160.  A  felonious  intent  may  also  be  proved  by  evidence  that 
the  goods  were  obtained  from  the  owner  hy  stratagem,  artifice,  or 
fraud.  But  here  an  important  distinction  is  to  be  observed  be- 
tween the  crime  of  larceny,  and  that  of  obtaining  goods  by  false 
pretences.  For  supposing  that  the  fraudulent  means  used  by  the 
prisoner  to  obtain  possession  of  the  goods  were  the  same  in  two 
separate  cases,  but  in  the  one  case  the  owner  intended  to  part  with 
his  property  absolutely,  and  to  convey  it  to  the  prisoner,  but  in  the 
other  he  intended  only  to  part  with  the  temporary  possession,  for 
a  limited  and  specific  purpose,  retaining  the  ownership  in  himself; 
the  latter  case  alone  would  amount  to  the  crime  of  larceny,  the 

1  Milburne's  case,  1  Lewin,  231  ;    Rex  randi,  he  disposes  of  the  chattel,  it  is  lar- 

V.  \m'4\,  2  East,  P.  C.  694  ;    The  People  ceny.     In  the  case  before  him,  the  prisoner 

V.  Anderson,  14  Johns.  294.     The  rule  of  had  ignorantly  driven  off  the  prosecutor's 

the  Roman  Civil  Law  substantially  agrees  lamb  with  his  own  flock,  but  afterwards 

with  what  is  stated  in  the  text.     Qui  ahe-  feloniously  sold  it ;  and  his  conviction  was 

num  quid  jaeens,  hicri  laciendi  causa  sus-  held    right.       [The    mere    possession    of 

tulit,  furti  obstrinuitur,  sive  scit  cujus  sit,  goods  which  have  been  lost,  is  not  prima 

sive  ignoravit ;  nihil  enim  ad  furtum  min-  facie  evidence  that  they  were  taken  felo- 

uendum    facit,    quud    cujus    sit    ignoret.  niously.     Hunt  v.  The  Commonwealth,  13 

Quod   si  dominus  id  derelinquit,   furtum  Grattan,  7.57.]     [*  A  prosecutor  found  a 

non  ht  ejus,  etiamsi  ego  furandi  aniraum  check,  and  being  unable  to  read  showed  it 

habuero  ;  nee  enim  furtum  fit,  nisi  sit  [scit]  to  the  prisoner.     The  prisoner  told  him  it 

cui   fiat;    in   proposito    autem  nulli  fit;  was  only  an  old  check  of  the  Royal  Brit- 

quippe  cum  placeat  Sabini  et  Cassii  sen-  ish  Bank,  and  kept  it.      He   afterwards 

tentia  existimantium,  statira  nostram  esse  made  excuses  for  not  giving  it  up  to  the 

desinere  rem,  quam  derelinquimus.     Sed  prosecutor,  withholding  it  from  him  in  the 

si  non  fuit  derelictum,  putavit  tamen  dere-  hopes  of  getting  the  reward  that  might  be 

lictum  furti  non    tenetur.     Sed  si  neque  offered  for  it.     It  was  held  that  these  facts 

fuit,  neque  putavit,  jaeens  tamen  tulit,  non  did  not  show  such  a  taking  as  was  ncces- 

ut  iucretur,  sed  redditurus  ei  cujus  fuit,  sary  to  constitute  larceny.     Reg.  v.  Gard- 

non   tenetur  furti.     Dig.  lib.   47,   tit.   2,  ner,  9  Cox,  C.  C.  253.     A  lady  wishing  to 

1.  43,  §  4  -  7.  [*  Keely  v.  State,  14  Ind.  36.]  get  a  railway  ticket  finding  a  crowd  at  the 

-  Rex  V.  Leigh,  2  East,  P.  C.  694  ;  The  pay  place  at  the  station  asked  the  prisoner, 

People  i\  McGarren,  17  Wend.  460.     In  who  was  nearer  in  to  the  pay  place,  to  get 

Regina   v.    Hiley,   17   Jur.    189;    14  Eng.  a  ticket  for  her,  and  handed  him  a  sover- 

Law   &  Eq.    R.    544,    the   rule   was   thus  eign  to  pay  for  it.     He  took  the  sovereign, 

stated  by  Pollock,  C.  B. :  "  If  the  original  intending  to  steal  it,  and  instead  of  getting 

possession   be    rightful,    subsequent  mis-  the  ticket  ran  away.      Held  that  he  was 

appropriation  does  not  make  it  a  felony  ;  guilty  of  larceny  at  common  law.     Reg.  v 

but  if  tiie  original  possession  be  wrongful,  Thompson,  9  Cox,  C.  C.  244.] 
though  not  felonious,  and  then,  animo  fu- 


136  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

former  constituting  only  the  offence  o{  oUaining  goods  hy  false  pre- 
tences} Thus,  obtaining  a  loan  of  silver  money,  in  exchange  for 
gold  coins  to  be  sent  to  the  lender  immediately,  but  which  the 
prisoner  had  not,  and  did  not  intend  to  procure  and  send,  was 
held  no  felony,  but  a  misdemeanor ;  ^  and  so  it  was  held,  where 
the  prisoner  obtained  the  loan  of  money  by  means  of  a  letter 
written  by  himself  in  the  name  of  another  person  known  to  the 
lender.^  But  where  the  goods  were  obtained  from  the  owner's 
servant,  the  prisoner  falsely  pretending  that  he  was  the  person  to 
whom  the  servant  was  directed  to  deliver  them,  it  was  held  to  be 
larceny.*  For  in  the  two  former  cases,  the  owner  intended  to  part 
with  his  money ;  but  in  the  latter  case,  tbe  taking  from  the  ser- 
vant was  tortious,  he  having  only  the  care  and  custody  of  the 
goods  for  a  special  purpose.  Tbe  rule  is  the  same,  where  goods 
are  fraudulently  taken  away  during  the  pendency  of  a  sale,  but 
before  it  is  completed  by  delivery ;  ^  or  where  they  are  obtained 
under  the  guise  of  receiving  them  in  pledge  ;^  the  owner,  in  these 
cases,  not  intending,  at  the  time,  to  divest  himself  of  all  legal 
title  to  the  goods  ;  but  the  prisoner  intending  to  deprive  him  of 
that  title. 

§  161.  As  every  larceny  includes  a  trespass,  which  involves  a 
violation  of  another's  possession,  it  is  essential  for  the  prosecutor 
to  prove  that  the  goods  were  the  property  of  the  person  named"'  as 

1  fRegina  v.  Brown,  36  Eng.  Law  &  Eq.  ^  Rex  v.  Sharpless,  1  Leach,  C.  C.  (4th 

R.  610.]     [*  In  Watson  v.  State,  36  Miss,  ed.),  108,   2  East,  P.  C.  675.      And  see 

593,  it  was  held  that  the  bill  of  sale,  iin-  Rex  v.  Aikles,  1   Leach,  C.  C.  (4th  ed.), 

der  which  the  prisoner  claimed,  being  pro-  330;    [Regina  v.  Morgan,  29  Eng.  Law  & 

cured    from    a  weak-minded   old   woman,  Eq.  R.  543.] 

under  his  care  and  protection,  bv  false  and  ^  Rex  v.  Patch,  1  Leach,  C.  C.  (4th  ed.), 
fraudulent  reiiresentations,  without  any  273;  2  East,  P.  C.  678  ;  Rex  y.  Moore,  1 
considci;ati()n  and  under  jm-tence  of  pro-  Leach,  C.  C.  (4th  ed.),  354;  Rex  i;.  Wat- 
tecting  the  ])roperty  for  her  benefit,  was  son,  2  Leach,  C.  C.  (4th  ed.),  730;  2  East, 
competent  evidence  "to  show  tiie  prisoner's  P.  C.  679,  680.  Sec  also.  Regina  v.  John- 
original  felonious  intent,  and,  in  pursuance  son,  2  Denison,  C.  C.  310;  14  Eng.  Law 
of  such  intent,  depriving  the  owner  of  the  &  Ecp  R.  570.  [*  See  also  State  i-.  Watson, 
property,  constituted  the  offence  of  lar-  41  N.  H.  533,  and  State  v.  Humphrey,  32 
ceny.]  Vt.  569.] 

■■^  Rex  V.  Coleman,  2  East,  P.  C.  672 ;  I  ^  If  it  appear  that  the  owner  is  known 

Leach,  C.  C.  (4th  ed.),  339,  n.     And  see  by  two  names,  indifferently,  as,  for  exam- 

Mowrey  v.  Walsh,  8  Cowen,  238.  pie,  Elizabeth  and  Betsey,  the  indictment 

"  Rex  V.  Atkinson,  2  East,  P.  C.  673.  will   be  proved,  though   only  one  of  the 

So,  where  tlie  defendant  (il)tained  goods  of  names   be   stated    therein.     The    State  v. 

a  tradesman  by  means  of  a  forged  order  Godet,  7  Ired.  210.     But  an  indictment  for 

from   a  custonicr.     Regina   v.   Adams,    1  stealing  the  goods  of  A.  is  not  sujjported 

Denison,  C.  (.'■  38.  bv  evidence  that  they  were  the  gooils  of  A. 

*  Rex'  V.  Wilkins,  2  East,   P.   C.  673;  &  B.  who  were  partners,  even  thoui,>^h  they 

[Regina  v.  Robins.  29  Eng.  Law  &  Eq.  R.  were  in  A.'s  actual  possession.     Tlu-  State 

544?  6  Cox,   C.  C.420:    Commonwealth  r.  Hogg.  3  Blackf  326 ;  Conimonwcalth  t-. 

V.  Wilde,  5  Grav,  83;  The  People  v.  Jack-  Trimmer,  1  Mass.  476.     IT  the  jiropirty  is 

son,  3  Parker,  0.  R.  590.]  alleged  to  be  in  A.  B.,  and  it  is  proved  to 


PART  Y.] 


LARCENY. 


137 


the  oivner,  and  were  taken  from  his  possession}  The  property- 
may  be  either  general  or  special,  and  the  possession  may  be  actual 
or  constructive  ;  proof  of  either  of  these  being  sufficient  to  support 
this  part  of  the  indictment.  For  the  general  ownership  of  goods 
draws  after  it  the  legal  possession,  though  they  were  in  the  actual 
custody  of  a  servant  or  agent ;  and  the  lawful  possession,  with  a 
qualified  property  as  bailee  or  agent,^  is  sufficient  proof  of  owner- 
ship, against  a  wrongdoer.^  But  it  must  appear  that  the  goods 
were  stolen  from  the  prosecutor;  and  if  he,  being  a  witness,  cannot 
swear  to  the  loss  of  the  articles  alleged  to  have  been  stolen  from 
him,  the  prisoner  must  be  acquitted.*  And  if  they  were  stolen  by 
a  person  unknown,  but  after  a  lapse  of  time  were  foimd  in  the  pos- 
session of  the  prisoner,  who  gave  a  reasonable  and  jjrobable  account 
of  the  manner  in  which  he  came  by  them,  it  will  be  incumbent  on 
the  proseciitor  to  negative  this  explanation.^ 


be  A.  B.  junior,  it  is  sufficient.  The 
State  V.  Grant,  22  Maine,  171  ;  Supra, 
§  22.  [*  But  a  chariic  for  larceny  con- 
taining divers  counts,  and  in  each  stating 
a  dirterent  owner  of  the  property,  is  good ; 
the  averment  of  ownership  being  but  a 
part  of  the  mode  of  describing  the  proper- 
ty. People  I'.  Connor,  17  Cal.  381.  The 
interest  of  mortgagees  of  personal  prop- 
erty, entitled  to  the  possession,  is  sufficient 
to  svipport  an  indictment  for  larceny. 
Stater.  Quick,  10  Iowa,  451.  In  People 
V.  Stone,  16  Cal.  369,  it  is  held  that  a  man 
may  steal  his  own  property,  if,  by  taking  it, 
it  is  his  intent  to  charge  a  bailee  with  it.] 

1  [The  owner  of  a  watch  placeil  it  with 
a  watchmaker  for  repairs.  Another  per- 
son fraudulently  induced  the  hitter  to  send 
it  to  the  owner  by  mail,  and  then  by  fraud 
obtained  it  from  the  postmaster  of  the 
place  to  where  it  was  sent.  Held,  that  he 
was  rightfully  convicted  of  larceny  from 
the  owner.  Regina  c.  Raj-,  1  Dears.  & 
Bell,  231.]  [*  It  is  not  sufficient  to  allege 
that  the  goods  stolen  were  the  property  of 
the  estate  of  a  deceased  person.  People 
V.  Hall,  19  Cal.  42.5.] 

2  And  although  the  goods  have  in  fact 
been  parted  with  by  the  bailee,  but  under 
a  mistake,  as  his  special  property  in  them 
is  not  thereby  devested,  if  a  larceny  of 
them  be  then  committed,  they  may  still  be 
laid  to  be  the  jjroperty  of  the  bailee.  Re-" 
gina  V.  Vincent,  2  Denison,  C.  C.  464 ;  9 
Eng.  Law  &  Eq.  R.  548 ;  3  C.  &  K.  246. 

3  2  East,  P.  C.  554 ;  1  Hawk.  P.  C.  eh. 
33,  §  2,  3.  Hence  the  general  owner  may 
be  guilty  of  larceny,  by  stealing  his  own 
goods  in  the  possession  of  his  agent  or  bai- 


lee, with  intent  to  charge  the  latter  with 
the  value.  2  East,  P.  C.  558 ;  Palmer's 
case,  10  Wend.  165;  Wilkinson's  case, 
Russ.  &  Ry.  470. 

*  Regina  v.  Dredge,  1  Cox,  C.  C.  235. 
In  Regina  v.  Burton,  6  Cox,  C.  C.  293 ; 
24  Eng.  Law  &  Eq.  R.  551,  the  prisoner 
was  found  coming  out  of  a  warehouse, 
where  a  large  quantity  of  pepper  was  kept, 
with  pepper  of  a  similar  quality  in  his  pos- 
session. He  had  no  right  to  be  in  the 
warehouse,  and  on  being  discovered,  said : 
"  I  hope  you  will  not  be  hard  with  me," 
and  took  some  pepper  out  of  his  pocket 
and  threw  it  upon  the  ground.  There 
was  no  evidence  of  any  pepper  having  been 
missed  from  the  bulk.  It  was  held,  that 
there  was  sufficient  evidence  to  go  to  the 
Jury  of  the  corpus  chlirti.  Jervis,  C.  J., 
said  :  "  It  could  not  have  been  intended  to 
lay  down  a  principle  in  Regina  o.  Dredge  " ; 
and  Maule,  J.,  in  pointing  out  the  distinc- 
tion between  that  case,  and  the  case  at  b.ar, 
said  :  "  There  the  prisoner  was  in  a  shop, 
where  he  might  lawfully  be ;  here  he  was 
where  he  ought  not  to  be.  The  boy  in 
that  case  kept  to  the  property  ;  the  man  in 
this  abandoned  it  and  threw  it  down.  In 
this  case  the  man  admitted  he  had  done 
something  wrong." 

s  Regina  v.  Crowhurst,  1  Car.  &  Kir. 
370;  Hall's  case,  1  Cox,  C.  C.  231  ;  The 
State  V.  Furlong,  19  Maine,  225.  And  see 
2  East,  P.  C.  656,  657  ;  Snpra,  §  32  ;  Re- 
gina V.  Cooper,  3  C.  &  K.  318.  [But  see 
also  Regina  v.  Wilson,  1  Dears.  &  Bell, 
157.]  [*  Other  goods  may  be  proved  to 
have  been  taken  at  the  same  time  and 
found  with  those  described  in  the  indict- 


188  LAW   OF   EVIDENCE   IN    CRIMINAL   CASES.  [PART  V. 

§  1(32,  If  the  goods  are  in  tlie  lianch  of  a  bailee  of  the  owner,  and 
the  bailee  fraudulently  applies  them  to  his  own  use  during  the 
continuance  of  the  bailment,  this  is  not  larceny,  because  here  was 
no  technical  trespass,  the  possession  of  the  bailee  being  lawful  and 
exclusive,  as  against  the  general  owner.  But  to  constitute  larceny 
in  such  a  case,  it  is  incumbent  on  the  prosecutor  to  show  that  the 
contract  of  bailment  was  already  terminated,  either  by  lapse  of 
time,  or  other  circumstances.  Ordinarily,  the  bailment,  jprimd 
facie^  is  proved  by  the  prisoner,  by  evidence  that  the  goods  were 
legally  in  his  possession  at  the  time  of  the  unlawful  appropriation 
charged.  This  proof  may  be  rebutted,  1st,  by  showing  that  the 
prisoner,  though  he  had  the  custody  of  the  goods,  was  a  mere 
servant  of  the  owner,  having  no  special  property  therein,  and  being 
under  no  special  contract  respecting  them  ;  but  his  possession  be- 
ing that  of  his  master ;  as,  where  a  butler  has  charge  of  his  mas- 
ter's plate,  or  a  servant  is  sent  on  an  errand  with  his  master's 
horse,  or  goods,  or  money,  or  receives  goods  or  money  for  his 
master,  from  another  person,  which  he  fraudulently  applies  to  his 
own  use  ;  this  is  larceny.^  Or,  2dly,  it  may  be  rebutted  by  show- 
ing that  the  prisoner  originally  obtained  the  possession  of  the  goods 
with  a  felonious  intent,  by  fraud  and  deceit,  or  by  threats  or  duress; 
as,  if  he  hired  a  horse,  under  pretence  of  a  journey,  but  with  intent, 
at  the  time,  to  convert  him  to  his  own  use ;  or  tlie  like.^  In  such 
cases  it  must  appear  that  the  owner  had  no  intention  to  part  with 
his  ultimate  title  or  property  in  the  goods,  but  only  to  part  with 
the  possession  ;  for  if  he  was  induced  by  fraud  to  sell  the  goods, 

ment,  in  the  di-feudant's  possession;    and  ed.),  825;   2  Russ.  on  Crimes,  155,  156 

such  u:(K)ds  may  lie  exhibited  to  the  Jury  Regina?'.  Hawkins,  1  Dcnison,  C.  C.  584 

and  taken  by  tlieni  to  their  room.     Com-  14  Jur.  513;    1  Eng.  Law  &  Eq.  R.  547 

monwcalth  v.  Riggs,  14  Gray,  376.     So,  Rex   v.   M'Namee,    uhi    supra,    has   been 

where  there  is  a  sufficient   description  of  doubted.     See  Regina  v.  Hey,  2  C.  &  K. 

property  to  constitute  tlie  offence,  evidence  98S  ;    Temple  &  Mew,  C.  C.  213.     [The 

may  be'given  of  the  taking  of  other  ])rop-  landlord  of  a  hotel  ottered  a  gun  to  a  guest 

erty  insufficiently  described,  as  a  circum-  to  go  out  shooting.     The  guest  accepted 

stance  attiiiding  the  otfenee.     Haskins  v.  the  otter  and  went  out,  and  did  not  return 

People,  16  N.  Y.  344.]  with  the  gun,  but  disposed  of  it  for  his  own 

1  2  East,  P.  C.  564  -  570 ;  1  Hale,  P.  C.  use.     Held   to    be   larceny.     Richards   v. 

506,  667,  668;    United  States  v.  Clew,  4  The  Commonwealth,  13  Grattan,  803.] 
Wash.  700;    Coniiuonwealth  v.  Brown,  4         '^  Rex  v.  Pear,  2  East,  P.  C.  685;  Rex 

Mass.  580,  586  ;  The  State  r.  Self,  1  Rav,  v.  Charlewood,  Id.  689  ;    Rex  v.  Semple, 

242;  The  Peojjle  v.  Call,   1  Denio,  120  ;"2  Id.  691  ;    1   Leach,  C  C.   {4th  ed.),  420; 

Russ.    on   Crimes,    153-166;     Hegina   v.  'Starkie's  case,  7  Leigh,  752 ;   J.  Kely.  82 ; 

Hayward,  1  (-ar.  &  Kir.  518;   Regina  v.  Blunt's  case,  4  Leigh,  689;    The  State  v. 

Goode,  Car.  &  M.  582  ;  Regina  v.  Beaman,  Gorman,  2  N.  &  MeC.  90  ;    Banks's  case, 

Id.  .595  ;   Regina  r.  Jones,  Id.  611  ;  Rex  v.  Russ.  k  Rv.  441  ;    Regina  v.  Brooks,  8  C. 

M'Namee,  1  Moody,  C.  C.  3<)8 ;  Regina  r.  &  P.  295 ; '  Re-^ina  v.  Thristle,  2  C.  &  K 

Watts,  14  Jur.  870 ;   1  Eng.  Law  &  E(i.  R.  842.     Regina  v.  Brooks,  ubi  supra,  is  over 

658 ;   Rex  v.  Spear,  2  Leach,  C.  C.  (4th  ruled.     Regina  v.  Janson,  4  Cox,  C.  C.  82. 


PART  v.] 


LARCENY. 


139 


the  prisoner,  as  we  have  seen,  is  only  guilty  of  a  misdemeanor .^ 
Or,  3dly,  the  evidence  of  bailment  may  be  rebutted  by  proof  that 
the  contract  had  been  determi7ied  by  the  ivrongful  act  of  the  bailee, 
previous  to  the  act  of  larceny.  A  familiar  illustration  of  this  point 
is  where  a  carrier  breaks  open  a  box  or  package  intrusted  to  him. 
Here  the  breaking  open  of  the  box  is  an  act  clearly  and  unequivo- 
cally evincing  his  determination  and  repudiation  of  the  bailment, 
and  his  custody  of  the  goods  becomes  thereby  in  law  the  posses- 
sion of  the  owner  ;  after  which,  his  conversion  of  part  or  all  of  the 
goods  to  his  own  use  is  a  felonious  caption  and  asportation  of  the 
goods  of  another,  which  constitutes  the  crime  of  larceny.  If  he 
sells  the  entire  package,  in  its  original  state,  without  any  other 
act,  though  the  privity  of  contract  is  thereby  determined,  yet  here 
is  no  caption  and  asportation  of  that  which  at  the  time  was  the 
entire  property  of  another,  but  only  a  breach  of  trust.^  And 
where  several  articles  constitute  the  subject  of  an  entire  contract 


1  Supra,  §§  1,  160.  And  see  Rex  v. 
Eobson,  Russ.  &  Ry.  413;  Rex  v.  Wil- 
liams. 6  C.  &  P.  390 ;  Regina  v.  Wilson, 
8  C.  &  P.  Ill ;  Regiua  v.  Rodway,  9  C.  & 
P.  784. 

^  The  distinction  between  the  two  cases 
is  clear,  though  exceedingly  refined ;  and 
is  well  explained  by  Mr.  Starkie.  "  The 
distinction,"  he  observes,  "  which  has 
constantly  been  recognized,  although  its 
soundness  has  been  doubted,  seems  to  be  a 
natural  and  necessary  consequence  of  the 
simple  principle  upon  which  this  branch  of 
the  law  rests  ;  and  although  it  may,  at  first 
sight,  appear  somewhat  paradoxical  and 
unreasonable,  that  a  man  should  be  less 
guilty  in  stealing  the  whole  than  in  steal- 
ing a  part,  yet  such  a  distinction  will  ap- 
pear to  be  well  warranted,  when  it  is  con- 
sidered how  necessary  it  is  to  preserve  the 
limits  which  separate  the  offence  of  larce- 
ny from  a  mere  breach  of  trust,  as  clear 
and  definite  as  the  near  and  proximate  na- 
tures of  these  offences  will  permit ;  and 
that  the  distinction  results  from  a  strict 
application  of  the  rules  which  distinguish 
those  offences.  If  the  carrier  were  guilty 
of  felony  in  selling  the  whole  package,  so 
would  every  other  bailee  or  trustee,  and 
the  offence  of  larceny  would  be  confouilded 
with  that  of  a  mere  breach  of  trust,  and 
indefinitely  extended.  On  the  other  hand, 
in  taking  part  of  the  goods  after  he  has 
determined  the  privity  of  contract,  the 
case  comes  within  the  simple  definition  of 
larceny,  for  there  is  a  felonious  caption 
and  asportation  of  the  goods  of  another, 
which  stands  totally  clear  of  any  bailment. 
It  is  true  that  the  sale  and  deliveiy  of  the 


■whole  package  by  the  carrier,  being  incon- 
sistent with  the  object  of  the  bailment,  de- 
termines the  privity  of  contract ;  but  then 
the  question  arises,  what  caption  and  as- 
portation constitute  the  larceny,  for  these 
are  in  all  cases  essential  to  the  offence.  A 
mere  intention  on  the  part  of  the  carrier 
to  convert  the  goods,  unaccompanied  by 
any  overt  act,  whereby  he  disaffirms  the 
contract,  is  insufhcient;  and  the  act  of 
conversion  itself,  such  as  the  delivery  of 
the  whole  of  the  entire  package  to  a  pur- 
chaser, is  insufficient,  because  it  is  merely 
contemporaneous  with  the  extinction  of 
the  privity  of  contract,  which  is  not  deter- 
mined, except  by  the  conversion  itself; 
but  if  the  package  be  first  broken,  and  by 
that  overt  act  the  contract  be  determined, 
a  subsequent  caption  and  asportation, 
either  of  part,  or,  as  it  seems,  of  the  whole 
of  the  goods,  is  a  complete  larceny  within 
the  definition,  unaflFccted  by  any  bailment. 
This  distinction  is  explained  by  Lord 
Hale  upon  the  principle  above  stated.  1 
Hale,  P.  C.  504,  505  ;  2  East,  P.  C.  697. 
Kelynge,  C.  J.,  explains  it  upon  the 
ground  of  a  presumed  previous  felonious 
intention  on  the  part  of  the  carrier,  when 
he  first  took  the  goods ;  but  this  is  not 
satisfactoiy,  since  the  same  presumption 
would  arise  when  the  carrier  disposed  of 
the  whole  of  the  package."  2  Stark. 
Evid.  448,  n.  (x).  And  see  1  Hale,  P. 
C.  504,  505  ;  2  East,  P.  C.  664,  685,  693, 
694,  697,  698  ;  Rex  v.  Brazier,  Russ.  & 
Ry.  337  ;  2  Russ.  on  Crimes,  59 ;  Rex  v. 
Madox,  Russ.  &  Ry.  92 ;  Cheadle  v.  Buell, 
6  Ohio,  67  ;  Rex  v.  Jones,  7  C.  &  P.  151  ; 
Regina  v.  Jenkins,  9  C.  &  P.  38  ;  Regina 


140  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

of  bailment,  such  as  bags  of  wheat,  to  be  kept  in  a  warehoiise ;  ^ 
barilla  or  corn,  to  be  ground  ;2  several  packages,  or  a  quantity  of 
staves,  to  be  carried  ;^  or  garments  to  be  sold,'^  the  abstraction  of 
one  of  the  parcels,  or  articles,  or  a  portion  of  the  bulk,  and  con- 
verting it  to  the  use  of  the  bailee,  has  been  held  to  amount  to  a 
breaking  of  bulk,  sufficient  to  terminate  the  bailment,  and  to  con- 
stitute larceny.^  Or,  4thly,  the  evidence  of  bailment  may  be  re- 
butted by  proof  that  the  contract  had  previously  been  terminated 
hy performance,  according  to  the  intent  of  the  parties;  as,  where 
goods,  sent  by  a  carrier,  had  reached  their  place  of  destination, 
and  been  there  delivered  ;  but  afterwards  were  stolen  by  the  car- 
rier.6  But  it  is  to  be  noted,  that  proof  of  the  delivery,  or  that  the 
bailee  had  parted  with  the  possession,  is  material ;  for  if  goods  are 
borrowed  or  hired  for  a  special  purpose,  as,  for  example,  a  horse 
to  go  to  a  particular  place,  and  after  that  purpose  is  accomplished, 
and  before  the  goods  are  returned  to  the  owner,  the  hirer,  or  bor- 
rower, upon  a  new  and  not  an  original  intention,  fraudulently 
converts  them  to  his  own  use,  this  is  held  not  to  amount  to  the 
crime  of  larceny  .''^ 

§  163.  By  the  common  law,  neither  tvild  animals  unreclaimed 
and  unconfined,  nor  things  annexed  to  or  savoring  of  the  reality  and 
unsevered,  could  be  the  subject  of  larceny.  If  the  animal  were 
already  dead,  or  reclaimed,  or  captured  and  confined,  it  should  be 
so  alleged  in  the  indictment ;  for  if  the  allegation  be  general  for 
stealing  such  an  animal,  which  is  known  to  be  ferce  naturce,  it  will 
be  presumed  to  have  been  alive  and  at  large  ;  and  evidence  of  the 
stealing  a  dead  or  tamed  animal  will  not  support  the  indictment.^ 
And  in  regard  to  things  once  part  of  the  realty,  it  must  be  proved 

V.  Cornish,  6  Cox,  C.    C.  432  ;   [*  State  v.  ^  The  Roman  Law  proceeded  on  a  sim- 

FaircloiK-h    29  Conn.  47.]     [In  Nichols  v.  ilar  principle.     Si  rem  apud  te  depositam, 

The   People,   17   New  York,    114,  it  was  fiirti  faciendi  causa  contrectaveris,  desmo 

held  that  a  carrier,  who  had  converted  to  possidere.     Dig.  lib.  42,  tit.  2   1.  3,  §  18. 

h's  own  use  several  ijigs  of  iron  out  of  a  See  ace.  Regina  v.  Poyser,  2  Denison,  C. 

larger  numix-r  placed  in  his  charge,  might  C.  233 ;  5  Cox,  C.  C.  241  ;  4  Lng.  Law  & 

be  convicted  of  larceny.     Dcnio  and  Com-  Eq.  R.  5G.'3 ;  3  Chitty,  Crim.   Law,  920 ; 

stock,  JJ.,  dissenting.]  Whart.  Am.  Crim.  Law,  571-5*6. 

1  Brazier's  case,  Russ.  &  Ry.  C.  C.  337.  «  1  Hale,  V.  C.  504,  505. 

•^    Comm(mwealth    v.   James,    1    Pick.  7  Kex  t'.  Banks,  Russ.  &  Ry.  441,  over- 

375;  1   1^)11.  Ai)r.  73.  ruling  Rex  v.  Charlewood,  2  East,  P.  C. 

8  'Commonwi-aith    v.   Brown,   4  Mass.  690;  1  Leach,  C.  C.  (4th  ed.)  409    as  to 

580;    Dame  r.   Baldwin,   8   Mass.    518;  this  point.     And  see  2  Russ.  on^Cnmes, 

Rex  y.  Howell.  7  C.  &  P.  325.     So  is  the  56,  57;    Regina  v.  Thnstle,  2    C.   it  K. 

law  of  Scotland.     Alison's  Crim.  Law  of  842.                                        ^   ^   „^„     t.j 

Scotland,  p.  252.  «  Rough's  case,  2  East,  P.  C.  607  ;  Ld- 

*  Rcina  v.  I'oyscr,  2  Denison,  C.  C.  wards's  case,  Russ.  *t  Ky.  C.  C  497  ;  tux 

233;  5''(^ox,  C.  C.  241  ;  4  Eng.  Law  &  v.  Ilalloway,  7  C.  &  P.  128;  Id.  127,  note 

jiq  R  565  (b).     And  sec  Commonwealth  v.  Chace,  9 


PAET  v.] 


LARCENY. 


14L 


that  tliey  were  severed  before  the  act  of  larceny  was  committed 
upon  them  If  the  severance  and  asportation  were  one  continued 
act  of  the  prisoner,  it  is  only  a  trespass  ;  but  if  the  severance  were 
the  act  of  another  person,  or  if,  after  a  severance  by  the  prisoner, 
any  interval  of  time  elapsed,  after  which  he  returned  and  took  the 
article  away,  the  severance  and  asportation  being  two  distinct  acts, 
it  is  larceny.^ 


Pick.  15;  1  Leading  Crim.  Cases,  66; 
Eex  V.  Brooks,  4  C.  &  P.  131 ;  1  Hawk. 
P.  C.  ch.  33,  §  26,  p.  144;  Regina  v. 
Cheafor,  ."J  Cox,  C.  C.  367;  1  Leading 
Crim.  Cases,  64;  8  Eng.  Law  &  Eq.  R. 
598 ;  2  Denison,  C.  C.  361  ;  Rex  v.  How- 
ell, Denison,  C.  C.  362,  note ;  1  Lead- 
ing Crim.  Cases,  65,  note ;  [*  Pea-fowls 
are  subjects  of  larceny.  An  indictment 
for  stealing  any  animal,  which  does  not 
state  whether  it  is  dead  or  alive,  is  not  sup- 
ported by  evidence  that  it  was  dead  when 
stolen  ;  even  if  it  is  an  animal  which  has 
the  same  appellation  whether  dead  or  alive. 
Commonwealth  v.  Beaman,  8  Gray,  497. 
A  dog  was  not  the  subject  of  larceny  at 
common  law.  People  v.  Campbell,  4  Par- 
ker, C.  R.  N.  Y.  386.  Oysters  planted  in 
a  bed,  and  not  naturally  growing  there,  are 
subjects  of  larceny.  State  v.  Taylor,  3 
Dutch,  117.    And  the  indictment  need  not 


aver  that  they  had  been  gathered,  or  were 
in  the  actual  possession  of  the  prosecutor, 
lb.] 

1.1  Hale,  P.  C.  510;  2  East,  P.  C.  587; 
Lee  V.  Risdon,  7  Taunt.  191,  per  Gibbs, 
C.  J.  The  Roman  Law  does  not  seem  to 
recognize  this  distinction,  but  adjudges 
the  act  of  severance  and  asportation  to  be 
theft  in  both  cases.  Eorum  quae  de  fundo 
tolluntur,  utputa  arborum,  vel  lapidum, 
vel  arense,  vel  fructuum,  quos  quis  frau- 
dandi  animo  decerpsit,  furti  agi  posse 
nulla  dubitatio  est.  Dig.  lib.  47,  tit.  2,  1. 
25,  §  2.  [*  To  take  an  impression  of  a 
warehouse-key  for  the  purpose  of  having 
a  false  key  made,  with  the  intent  of  enter- 
ing the  house  and  stealing  therefrom,  is  an 
attempt  to  commit  larceny,  whether  the 
party  intend  to  steal  himself  or  to  procure 
another  to  do  it,  Benning,  J.,  dissenting. 
Griffin  V.  State,  26  Geo.  493.] 


142  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 


LIBEL. 

[*  §  164.  Difficulty  of  defining  the  offence. 

165.  As  committed  against  an  individual,  defined  by  statute  in  some  states. 

166.  What  the  indictment  sets  forth. 

167.  In  written  or  printed  libel,  proof  must  agree  with  indictment  in  every  partic- 

ular essential  to  identity. 

168.  Publication,  in  itself  defamatory,  prima  facie  evidence  of  malice. 

169.  Publication,  sufficient  to  constitute  the  crime. 

170.  Participation  in  act  of  publication  sufficient,  as  writing  libel,  printing  it,  &C. 

171.  Party  participating  in  publication  guilty,  though  ignorant  of  contents  of  libel. 

172.  Dictating  or  communicating  libel  to  another,  with  view  to  publication,  suf- 

ficient. 

173.  Publication  must  be  proved  to  have  been  made  within  county  where  trial  is 

had. 

174.  Colloquium,  how  proved. 

175.  Innuendoes,  not  subject  of  proof. 

176.  Truth  of  defamatory  publication  generally,  by  statute,  a  justification. 

177.  But  this  is  properly  confined  to  libels  defamatory  of  the  person. 

178.  Defences. 

179.  Right  of  the  jury.     In  United  States  may  find  general  verdict.] 

§  164.  The  difficulty  of  defining  this  oflfence  at  common  law 
has  often  been  felt  and  acknowledged.  Lord  Lyndhurst  thought 
it  hardly  possible  to  define  it ;  observing  that  any  definition  he 
had  ever  seen  was  faulty,  and  wanting  in  the  requisites  of  a  logical 
definition,  either  in  its  vagueness  and  generality,  or  in  its  omis- 
sion of  essential  particulars.^  Yet  all  text  writers  on  this  subject 
have  undertaken  to  define,  or  at  least  to  describe  it,  and  this  with 
a  degree  of  precision  probably  sufficient  for  all  practical  purposes. 
According  to  Russell,  and  to  the  authorities  to  which  he  refers, 
the  crime  of  Libel  and  Indictable  Slander  is  committed  by  the 

1  Sec  his  testimony  before    the   Lords'  See  Steele  v.  Southwick,    9    Johns.   21.'); 

Committee,  in  C(K)i«' on  Defamation,  App.  Cooper   v.    Greeley,    1    Denio,    'Ml.     Mr. 

No.  2,  J).  482.     Mr.  Hamilton  ventured  to  Starkic,  in  more  general  terms,  defines  the 

define  it   as    "a  censorious   or  ridiculing  ofVenee  as    '•  tlie    wilful  and  unauth()rized 

writing,  ]>icturc,  or  sign,  made  with  a  mis-  publication    of    that   which    immediately 

chievous    and    malicious    intent    towards  tends  to'  produce  mischief  and  inconven- 

government,  mau'istrates,  or  individuals."  ience  to  society."     But  this  comprelu-nsive 

Arqmndo,    in  The  People  v.    Croswell,  3  definition  he  afterwards  expands  into  the 

Joiins.    Tns.  .1.17,   .3.')4.      This   was  subse-  several  species  of  this  crime,  which  lie  de- 

quentlv  ni)pn)ved  hy  the  ('i)in-t,  as  a  defi-  scribes  with  suflicient  particularity.     See 

nition"  drawn  with"  the  utmost  precision."  2  Stark,  on  Slander,  p.  129. 


PART  v.]  LIBEL.  143 

publication  of  writings  blaspheming  the  Supreme  Being,  or  turn- 
ing the  doctrines  of  the  Christian  religion  into  contempt  and  ridi- 
cule ;  —  or  tending,  by  their  immodesty,  to  corrupt  the  mind,  and 
to  destroy  the  love  of  decency,  morality,  and  good  order  ;  —  or 
wantonly  to  defame  or  indecorously  to  calumniate  the  economy, 
order,  and  constitution  of  things  which  make  up  the  general  sys- 
tem of  the  law  and  government  of  the  country  ;  —  to  degrade  the 
administration  of  government  or  of  justice  ;  —  or  to  cause  ani- 
mosities between  our  own  and  any  foreign  government,  by  personal 
abuse  of  its  sovereign,  its  ambassadors,  or  other  public  ministers  ; 
—  and  by  malicious  defamations,  expressed  in  printing  or  writing, 
or  by  signs  or  pictures  tending  either  to  blacken  the  memory  of 
one  who  is  dead,  or  the  reputation  of  one  who  is  living,  and  thereby 
to  expose  him  to  public  hatred,  contempt,  and  ridicule.^  This 
descriptive  catalogue  embraces  all  the  several  species  of  this 
offence  which  are  indictable  at  common  law ;  all  of  which,  it  is 
believed,  are  indictable  in  the  United  States,  either  at  common 
law  or  by  virtue  of  particular  statutes. 

§  165.  In  several  of  the  United  States  this  offence,  in  its  more 
restricted  acceptation,  as  committed  against  an  individual,  has 
been  defined  hy  statute.  Thus,  in  Maine,  it  is  enacted,  that  "a 
libel  shall  be  construed  to  be  the  malicious  defamation  of  a  per- 
son, made  public  either  by  any  printing,  writing,  sign,  picture, 
representation,  or  effigy,  tending  to  provoke  him  to  wrath,  or  ex- 
pose him  to  public  hatred,  contempt,  or  ridicule,  or  to  deprive  him 
of  the  benefits  of  public  confidence  and  social  intercoiirse  ;  or  any 
malicious  defamation,  made  public  as  aforesaid,  designed  to 
blacken  and  vilify  the  memory  of  one  that  is  dead,  and  tending  to 
scandalize  or  provoke  his  surviving  relatives  or  friends."  ^  Defini- 
tions of  the  like  import  are  found  in  the  statute  books  of  some 
other  States  ;  ^  and  would  doubtless  be  recognized  in  all,  as  ex- 
pressive of  the  law  of  the  land ;  the  common  law,  in  regard  to 
what  constitutes  a  libel,  being  adopted  in  all  the  States,  except 
so  far  as  it  may  have  been  altered  by  statutes  or  constitutional 
provisions.* 

1  Russ.  on  Crimes,  220.  And  see  2  2767;  Arkansas,  Rev.  Stats.  1837,  Div.  8, 
Stark,  on  Slander,  pp.  129-224;  Cooke  ch.  44,  art.  2,  §  1,  p.  280  ;  ft  o?(7/«,  Prince's 
on  Defamation,  pp.  69-80;  Holt  on  Li-  Dig.  pp.  643,  644;  Hotchk.  Dig.  p.  739; 
bels,  pp.  74  -  249  ;  2  Kent,  Comm.  16-26.  Cobb's   Dig.    Vol.  2,   p.   812,-    Califonna, 

2  See  Maine  Rev.  Stats.  1840,  ch.  165,  Stat.  1850,  ch.  99,  §  120;  Illinois,  Rev. 
§  1.  Stats.  1845,  Crim.  Code,  §  120. 

2  Such,  in  substance,  are  the  definitions  *  Commonwealth  v.  Chapman,  13  Met. 
in  Iowa,  Rev.  Code  of  1851,  ch.  151,  art.     68;     Dexter   v.    Spear,    4    Mason,    115; 


144  LAW    OF   EMDENCE   IN    CRIMINAL   CASES.  [PART  V. 

§  106.  The  indictment  for  this  offence  sets  forth  the  libellous 
tvriting  or  act,  —  the  malicious  intent,  —  its  object,  or  the  person 
whom  it  was  designed  to  disgrace  or  injure,  —  the  publication  of 
the  writing,  with  proper  inuendoes,  referring  the  libellous  matter 
to  its  alleged  object,  —  and  the  place  of  publication.  The  place, 
however,  is  not  necessary  to  be  proved,  except  so  far  as  it  is  essen- 
tial to  the  jurisdiction,  and  where  it  is  locally  descriptive  of  the 
offence.^ 

§  167.  In  the  case  of  a  ivritten  or  printed  libel,  the  proof  must 
agree  with  the  indictment  in  every  particular  essential  to  the  iden 
tity,  such  as  dates,  names  of  persons,  and  the  precise  words  used, 
a  variance  in  any  of  these  particulars  being  fatal.^  But  a  literal 
variance  alone  is  not  fatal,  where  the  omission  or  addition  of  a 
letter  does  not  make  it  a  different  word.^  Thus,  "  undertood," 
for  "  understood,"  *  "  reicevd,"  for  "  received,"  ^  and  the  like,  are 
immaterial  variances  ;  and  a  diversity  in  the  spelling  of  a  name  is 
not  material,  where  it  is  ideyn  sonans,  as,  "  Segrave,"  for  "  Sea- 
grave."  ^  Tliis  rule  applies  more  strictly  to  cases  where  the  libel- 
lous writing  is  set  forth  in  licec  verba,  as  it  ought  always  to  be, 
where  it  is  in  the  power  of  the  prosecutor.^  But  wliere  the  paper 
is  in  the  prisoner's  exclusive  possession,  or  has  been  destroyed  by 
him,  and  perhaps  in  some  other  cases,  where  its  production  is  out 
of  the  power  of  the  prosecutor  (in  all  which  cases  it  should  be  so 
stated  in  the  indictment),  inasmuch  as  it  may  be  sufficient  to  state 
the  purport  or  substance  of  the  libel,  secondary  evidence  may  be 
received  of  its  contents.^ 

White  V.  Nichols,  .*H  How.  S.  C.  R.  266,  ing  that  defendant  published  a  libel  on 

291;    Commomvealth  v.   Clapp,   4   Mass.  November  21st,  may  be  supported  by  evi- 

163,  168;    Usher  ».  Severance,  20  Maine,  deuce  of  its  publication  in  a  newspaper 

9;    Hillhouse  v.  Dunning,  6  Conn.  391;  dated  November  19th.      Aliter,  if  it  had 

Steele  V.  Southwick,  9  Johns.  214;    Colby  been  alleged  to  have  been  published  in  a 

V.  Reynolds,  6   Verm.  489 ;    McCorkle  r.  newspaper    dated     the    21st.       Common- 

Binns",  .5  Binn.  340;  The  State  v.  Farley,  wealth  v.  Varuey,  10  Cush.  402.] 

4    McCord,    317;      Torrance    v.    Hurst,  ^  Regina  v.    Drake,   2   Salk.   660,   per 

"Walker    403  ;    Armentrout  v.  Moranda,  8  Powers,  J.,  approved,  as  "  the  true  distmc- 

Blackf  426  ;  Newbraugh  v.  Currv,  Wright,  tion,"  per  Ld.  Mansfield,  Cowp.  230  ;  Tho 

47  ;  Taylor  i'.  (Jeorgia,  4  Georgia,  14  ;  The  State  v.  Bean,  19  Verm.  530;    The  State 

State  v.  White,  9  Ired.  418;    7  Ircd.  180;  v.  Weaver,  13  Ired.  491. 

Robbins  V.  Treadway,  2  J.  J.  Marsli.  540 ;  *  Rex  v.  Beach,  Cowp.  229. 

1  Kent,  Comm.  Lcct.  24,  p.  620  (7th  ed.);  ^  Rex  v.  Hart,  2  Kast,  P.  C.  977;  1 
The  State  v.  Henderson,  1  Rich.  179.  Leach,  C.  C.  (4th  ed.).  145. 

1  Snpra,  §  12  ;  infni,  §  173.  «  Williams  v.  Ogle,  2  Stra.  889. 

2  See  ante,  Vol.'l,  §§  56,  58,  65  e<  .sr^. ;  "^  Commonwealth   v.    Wright,    1    Cush. 

2  Russ.  on  Crimes,  788.  But  the  omis-  46 ;  1  Leading  (^rim.  Cases,  296 ;  Wright 
sion  of  the  date  and  signature  at  the  end  r.  Clements,  3  B.  &  Aid.  503 ;  1  Leading 
of  the  libel,  not  aflcetin'j:  the  meanintj,  is  Crim.  Cases,  312. 

not  a  variance.  C;ommonwealth  v.  liar-  »  Commonwealth  v.  Houghton,  8  Mass 
mon  2  Gray,  289.     [An  indictment  aUcg-     107,  110;  The  State  v.  Bouncy,  34  Maine, 


PART  v.] 


LIBEL. 


145 


§  1G8.  In  the  2^^'oof  of  malice,  it  is  not  necessary,  in  the  open- 
ing of  the  case  on  the  part  of  the  government,  to  adduce  any  par- 
ticular evidence  to  this  point,  where  the  publication  or  corpus 
delicti,  as  charged,  is  in  itself  defamatory ;  for  in  such  cases  the 
law  infers  malice,  unless  something  is  drawn  from  the  circum- 
stances attending  it  to  rebut  that  inference.^  But  where  the  in- 
tent is  equivocal,  or  the  act  complained  of  is  not  plainly  and  of 
itself  defamatory,  some  substantive  evidence  of  malice  should  be 
offered.^  Such  evidence  is  also  necessary  on  the  part  of  the  prose- 
cution, where  the  defence  set  up  to  the  charge  of  a  libellous  publi- 
cation is,  that  it  was  privileged.^     If  the  communication  was  of  a 


223 ;  The  People  v.  Kingsley,  2  Cowen, 
522.  And  see  United  States  v.  Britton,  2 
Mason,  464,  467,  468 ;  Johnson  v.  Hudson, 
7  Ad.  &  El.  233,  u. 

1  Rex  V.  Creevey,  1  M.  &  S.  273,  282 ; 
Rex  V.  Ld.  Abingdon,  1  Esp.  226 ;  Jones 
V.  Stevens,  1 1  Price,  235 ;  White  u.  Nich- 
ols, 3  How.  S.  C.  Rep.  291.  Malice,  in 
this  connection,  does  not  necessarily  imply 
personal  ill-will.  The  Commonwealth  v. 
Bonner,  9  IMct.  410;  Commonwealth  v. 
Snelling,  15  Pick.  340. 

•^  Stuart  V.  Lovell,  2  Stark.  R.  93.  See, 
as  to  the  proof  of  malice,  ante,  Vol.  2, 
§418. 

3  White  V.  Nichols,  3  How.  S.  C.  Rep. 
286.  In  this  case,  privileged  communica- 
tions were  distributed,  by  Mr.  Justice  Dan- 
iel, into  four  classes  :  "1.  Whenever  the 
author  and  publisher  of  the  alleged  slan- 
der acted  in  the  bond  fide  discharge  of  a 
public  or  private  duty,  legal  or  moral ;  or 
in  the  prosecution  of  his  own  rights  or  in- 
terests. For  example,  words  spoken  in 
confidence  and  friendship,  as  a  caution ;  or 
a  letter  written  confidentially  to  persons 
who  employed  A.  as  a  solicitor,  conveying 
charges  injurious  to  his  professional  char- 
acter in  the  management  of  certain  con- 
cerns which  they  had  intrusted  to  him, 
and  in  which  the  writer  of  the  letter  was 
also  interested.  2.  Any  thing  said  or 
written  by  a  master  in  giving  the  charac- 
ter of  a  servant  who  has  been  in  his  em- 
ployment. 3.  Words  used  in  the  course 
of  a  legal  or  judicial  proceeding,  however 
hard  they  may  bear  upon  the  party  of 
whom  they  are  used.  4.  Publications 
duly  made  in  the  ordinary  mode  of  parlia- 
mentary proceedings,  as  a  petition  printed 
and  delivered  to  the  members  of  a  commit- 
tee appointed  by  the  House  of  Commons 
to  hear  and  examine  grievances."  Ibid. 
The  learned  Judge,  in  delivering  the  opin- 
ion of  the  Court,  concluded  the  first  part 
of  his  elaborate  investigation  with  the  fol- 
VOL.  III.  10 


lowing  comprehensive  statement  of  its  re- 
sults :  "  The  investigation  has  conducted 
us  to  the  following  conclusions,  which  we 
propound  as  the  law  applicable  thereto : 
1.  That  every  publication,  either  by  writ- 
ing, printing,  or  pictures,  which  charges 
upon  or  imputes  to  any  person  that  which 
renders  him  liable  to  punishment,  or  which 
is  calculated  to  make  him  infamous,  or 
odious,  or  ridiculous,  is  prima  fijcie  a  libel, 
and  implies  malice  in  the  author  and  pub- 
lisher towards  the  person  concerning  whom 
such  publication  is  made.  Proof  of  mal- 
ice, therefore,  in  the  cases  just  described, 
can  never  be  required  of  the  party  com- 
plaining, beyond  the  proof  of  the  publica- 
tion itself;  justification,  excuse,  or  exten- 
uation, if  either  can  be  shown,  must  pro- 
ceed from  the  defendant.  2.  That  the 
description  of  cases  recognized  as  privi- 
leged communications,  must  be  understood 
as  exceptions  to  this  rule,  and  as  being 
founded  upon  some  apparently  recognized 
obligation  or  motive,  legal,  moral,  or  so- 
cial, which  may  fairly  be  presumed  to  have 
led  to  the  publication,  and  therefore,  prima 
fiicie,  relieves  it  from  that  just  implication 
from  which  the  general  rule  of  the  law  is 
deduced.  The  rule  of  evidence  as  to  such 
cases  is  accordingly  so  far  changed  as  to 
impose  it  on  the  plaintiff  to  remove  those 
presumptions  flowing  from  the  seeming 
obligations  and  situations  of  the  parties, 
and  to  require  of  him  to  bring  home  to  the 
defendant  the  existence  of  malice  as  the 
true  motive  of  his  conduct.  Beyond  this 
extent  no  presumption  can  be  permitted 
to  operate,  much  less  be  made  to  sanctify 
the  indulgence  of  malice,  however  wicked, 
however  express,  under  the  protection  of 
legal  forms.  We  conclude,  then,  that  mal- 
ice may  be  proved,  though  alleged  to  have 
existed  in  the  proceedmgs  before  a  court, 
or  legislative  body,  or  any  other  tribunal 
or  authority,  although  such  court,  legisla- 
tive body,  or  other  tribunal  may  have  been 


146  LAW   OF   EVIDENCE   IN   CRimNAL   CASES.  [PAET  V. 

class  absolutely  privileged,  proof  of  actual  malice  is  inadmissible, 
as  it  constitutes  no  answer  or  bar  to  the  privilege. ^  Such  is  the 
case  of  matter  necessarily  published  in  the  due  discharge  of  offi- 
cial or  public  duty.  But  where  the  publication  is  owlj  prima  facie 
privileged,  as  in  the  case  of  a  character  given  of  a  servant,  or  of 
advice  confidentially  given,  or  the  like,  the  defence  of  privilege 
may  be  rebutted  by  proof  of  actual  malice.^  Thus,  it  may  be 
shown,  that  the  same  communication  was  voluntarily  made  by 
the  defendant  on  other  occasions,  when  it  was  not  called  for  ;  or 
that  he  has  at  other  and  subsequent  times  published  other  libel 
lous  matter  relating  to  the  same  subject,  or  other  copies  of  the 
same  libel.^  Other  publications,  also,  contained  in  the  same 
paper,  and  relating  to  the  same  libel,  or  expressly  referred  to  in 
the  writing  set  forth  in  the  indictment  and  explanatory  of  its 
meaning,  may  be  read  in  evidence,  they  being  in  the  nature  of 
parts  of  the  res  gestoe,  and  showing  the  real  meaning  and  intent  of 
the  party.* 

§  169.  Though  the  indictment  for  a  libel  in  writing  or  print 
should  charge  the  defendant  with  having  composed,  ivritten,  printed, 
and  published  it,  yet  it  is  not  necessary  to  prove  all  these  ;  for  it  is 
not  perfectly  clear  that  it  is  legally  criminal  to  compose  and  write 
libellous  matter  if  it  be  not  published  ;  ^  and  it  is  well  settled  that 
the  charge  will  be  supported  by  proof  of  the  publication  alone,^ 
tins  being  of  the  essence  of  the  offence.     Publication  consists  in 

the   appropriate   authority  for  redressing  Westley,  6  C.  &  P.  436  ;  Finncrty  v.  Tip- 

the  f-ricvance  represented  to  it ;  and  that  per,  2  Campb.  72 ;    Thomas  v.  Croswell,  7 

■proof  of  express   mahce  in   any  written  Johns.  264,270;  Rex  r.  Pearce,  1  Peake, 

publication,    petition,   or   proceeding,   ad-  Cas.  75  ;  Plunkctt  v.  Cobbctt,  5  Esp.  136. 

dressed  to  such  tribunal,  will  render  that  *  Hex  v.  Lambert,  2  Campb.  398 ;  Cook 

publication,  petition,  or  procccdin.LS  libel-  v.  Hughes,  Ry.  &  M.  112;  Rex  v.  Slaney, 

lous  in  its  character,  and  actionai)le,  and  5  C.  &  P.  213. 

will  subject  the  author  and  publisher  there-  ^  In   Hex  v.  Paine,  5  Mod.  163,  167,  it 

of  to  ail  the  consequences  of  libel.     And  was  held  that  themaking  of  a  libel  was  an 

we  think  that  in  evcrv  case  of  a  proceed-  offence,  though  it  never  be  published.     In 

ing  like  those  just  enumerated,  folsehood  Rex  v.  Burdett,  4  B.  &  Aid.  95,  Lord  Ten- 

and  tiie   absence   of  i)robable   cause  will  terden,  and  Holroyd,  J.,  were  of  o])iuion 

amount  to  proof  of  malice."     Ibid.  p.  291.  that  the  writing  of  a  lil)el  with  iiitcnt  to 

As  to  privileged  communications,  see  fur-  defame,    was    of    itself    a    misdemeanor; 

thcr,  (iiile,   Vol.   2,  §5;  421,  422;    [Farns-  though  the  latter  .seemed  to  lay  stress  on 

worthy.  Storrs,  5  Ciish.  412;    Sheckell  i^.  the  fact  of  a  subsequent  publication,   as 

Jackson,  10  Iil.  25;    Barrows  v.  Bell,  7  evidence  of  the  intent.     Best,  J.,  said  noth- 

Gray,  301  ;    Van  Wyck  v.  Aspinwall,  17  ing  on  this  point,  as  it  was  not  necessary 

N.  Y.  190;  Gassett  in  Gili)crt,  6  Grav,  94 ;  to  the  judgment;    and   Baylcy,   J.,   after 

Uavison  v.  Duncan,  40  Eng.  Law  ic  Eq.  stilting  it,  observed  that  the  case  seemed 

jj   215.1  hardly   rijie'  for  discussing  that  question. 

I'Cooke  on  Defamation,  p.  148.  Sec  also  I  Russ.  on  Crimes,  248;  2  Stark. 

2  Sands  v.  Robinson,  12  S.  &  M.  704.  on   Slander,  312;    1   Hawk.  P.  C.  ch.  73, 

8  Rogers  i;.   Clifton,  3   B.  v<:.  P.  5S7  ;  §11;  Roscoe,  Criin.  Evid.  6.54. 

Bromage  r.  Prosser,  4  B.  &  C.  247,  256;  ''  Rex  v.  Hunt,  2  Campb.  583;   Bex  v. 

Stuarto.  Lovell,  2  Stark.  R.  93  ;  Chubb  i-.  Williams,  Id.  646. 


PART  v.]  LIBEL.  147 

communicating  the  defamatory  matter  to  tlie  mind  of  anothei, 
whether  it  be  privately  to  the  party  injured  alone,  with  intent  to 
provoke  him  to  a  breach  of  the  peace/  or  to  others,  with  intent  to 
injure  the  individual  in  question,  or  to  perpetrate  more  extensive 
mischief.  And,  generally  speaking,  all  persons  who  knowhigly 
participate  in  the  act  of  publication,  are  equally  liable  to  prosecu- 
tion for  this  offence. 

§  170.  It  will  be  sufficient,  therefore,  in  proof  of  publication,  to 
show  that  the  defendant  wrote  the  libel  which  is  found  in  an- 
other's possession,  until  this  fact  is  otherwise  accounted  for  i^  and 
if  a  letter  containing  a  libel  have  a  postmark  upon  it  and  the  seal 
be  broken,  this  is  prima  facie  evidence  of  its  publication.^  If  the 
libel  be  in  a  newspaper,  the  act  of  printing  it,  if  not  otherwise  ex- 
plained by  circumstances,*  delivering  a  copy  to  the  proper  officer 
at  the  stamp-office,°  and  payment  to  the  stamp-officer  for  the  duties 
on  the  advertisements  in  .the  same  paper,^  have  each  been  held 
sufficient  evidence  of  publication.  Proof  that  the  printed  libel  was 
sold  in  the  shop  of  the  defendant,,  though  it  were  without  his 
actual  knowledge,  the  sale  being  by  a  servant,  in  his  absence,  is 
sufficient  evidence  of  publication  by  the  master,  unless  he  can  re- 
but it  by  proof  that  the  sale  was  not  in  the  ordinary  course  of 
the  servant's  employment,  and  that  the  book  was  clandestinely 
brought  into  the  shop  and  sold,  or  that  the  sale  was  contrary  to 
his  express  orders,  and  that  some  deceit  or  surprise  was  practised 
upon  him ;  or  that  he  was  absent  under  such  circumstances  as 
utterly  negatived  any  presumption  of  privity  or  connivance  on  his 
part ;  as,  for  example,  if  he  were  in  prison,  to  which  his  servants 
could  have  no  access,  or  the  like.^  In  these  cases,  the  agency  of 
the  servant  may  be  proved  by  evidence  of  his  general  employment 
in  that  department  of  the  defendant's  business  ;  but  where  the  act 
of  publication,  v/hether  by  sale  or  by  writing  and  sending  a  letter, 
was  done  by  another  not  thus  generally  employed,  the  agency 
must  be  particularly  proved.^ 

1  1  Hawk.  P.  C.  ch.  73,  §  11  ;    1  Rnss.         5  x{ex  v.  Amphlit,  4  B.  &  C.  35. 
on  Crimes,  244,  250;  The  State  v.  Avery,         ^  Cook  v.  Wuril,  6  Bin^.  409. 
7   Conn.  267,   269;    Rex  v.   Wegener,   2         7  Ante,   VoL   1,  §  36,  and  cases  there 

Stark.  R.  245;   Hodges  v.  The  State,  5  cited;    Holt  on  Libels,  293-29G;    Wood- 

Humph.  112.  fall's  case,  1  Hawk.  P.  C.  ch.  73,  §  10,  n. ; 

-Rex    V.    Beare,    1    Ld.    Raym.  414;  2  Stark,  on  Slander,  30    34  ;  Rex  r.  Alnio.i, 

Lamb's  case,  9  Co.  59;   Regina  v.  Lovett,  5  Burr.  2686;  1  Leading  Crim.  Cases,  -Ml  • 

9  C.  &  P.  462.  Commonwealth  v.  Nichols.    10  Met.  259, 

3  Shiplev  I'.  Todhunter,  7  C.  &  P.  680 ;  Commonwealth  v.  Buckingham,  2  Wheeler 

Warren   v.   Warren,   1    C.  M.  &  R.   2.50.  C.  C.  198;  Thacher's   Crim.  Cases,  29. 
And  see  UH^e,  ^'ol    1,  §40.  »  Harding  i'.   Greening,   8   Taunt.   42; 

*  Baldwin  v.  Elphinstone,  2  W.  Bl.  1038.  Ante,  Vol.  2,  tit.  Agency,  §§  64,  65. 


148  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

§  171.  If  the  evidence  of  publication  be  an  admission  of  the  de- 
fendant that  he  was  the  author  of  the  libel,  "  errors  of  the  press 
and  some  small  variations  excepted,"  the  burden  of  proof  is  on  the 
defendant  to  show  that  there  were  material  variances.^  He  who 
procures  another  to  publish  a  libel,  is  guilty  himself  of  the  publica- 
tion ;  and  he  who  disperses  a  libel  is  also  guilty  of  the  publication, 
though  he  did  not  know  its  contents.  The  apparent  severity  of 
this  rule,  and  of  that  which  renders  the  owner  of  a  shop  responsi- 
ble as  the  publisher  of  libels  sold  therein  without  his  knowledge,  is 
justified  on  the  score  of  high  public  expediency,  or  necessity,  to 
prevent  the  circulation  of  defamatory  writings,  which,  otherwise, 
might  be  dispersed  with  impunity .^ 

§  172.  Evidence  that  the  defendant  dictated  the  libel  to  another, 
or  communicated  it  verbally  to  him,  ivith  a  view  to  its  publication, 
is  also  sufficient  to  charge  him  with  the  publication.  Thus,  where 
the  defendant,  meeting  the  reporter  for  one  of  the  public  prints, 
communicated  to  him  the  defamatory  matter,  saying  that  "  it 
would  make  a  good  case  for  the  newspaper  "  ;  and  accompanied 
him  to  an  adjacent  tavern,  where  a  more  detailed  account  was 
given,  for  the  express  purpose  of  inserting  it  in  the  news- 
paper with  which  the  reporter  was  connected ;  after  which  the 
reporter  drew  up  an  account  of  the  matter,  which  was  inserted 
in  the  paper ;  this  was  held  sufficient  proof  of  a  publication  by 
the  defendant.  But  the  newspaper  was  not  admitted  to  be  read 
in  evidence,  until  the  paper  written  by  the  reporter  was  produced, 
that  it  might  appear  that  the  written  and  the  printed  articles  were 
the  same.^ 

§  173.  HhQ  publication  must  be  proved  to  have  been  made  with- 
in the  county  where  the  trial  is  had.^  If  it  was  contained  in  a 
newspaper  printed  in  another  State,  yet  it  will  be  sufficient  to 
prove  that  it  was  circulated  and  read  within  the  county.^  If  it 
was  written  in  one  county,  and  sent  by  post  to  a  person  in  another, 
or  its  publication  in  another  county  be  otherwise  consented  to, 
this  is  evidence  of  a  publication  in  the  latter  county.^    Whether, 

1  Rex  V.  Hall,  1  Stra.  416.  to  publication,  see  further,  ante,  Vol.  2, 

2  1  Hawk.  P.  C.  ch.  73,  §  10;    1  Russ.     §§  415,  416. 

on  Crimes,  250,  251.      This  rule  is  now  *  1  Russ.  on  Crimes,  258;   Nicholson  v. 

modified  in  Ent;l:ind,  the  defendant  being  Lothrop,  3  Johns.  139. 

permitted  by  Stat.  6  ami  7  Vict.  ch.  96,  &  Commonwealth  v.  Blanding,  3  Pick. 

§  7,  to  prove  that  th(;  publication  was  made  304. 

without  his  authority,  consent,  or  knowl-  «  1  Russ.  on  Crimes,  258;    12  St.  Tr. 

edge,  and  did  not  arise  from  his  want  of  331,  332;  Rex  r.  Watson,  1  Campb.  215; 

due  care  or  caution.  Rex  v.  Johnson,  7  East,  65. 
8  Adams  v.  Kelly,  Ry.  &  M.  157.     As 


PART  v.]  LIBEL.  149 

if  a  libel  be  written  in  one  county,  with  intent  to  publish  it  in  an- 
other, and  it  is  accordingly  so  published,  this  is  evidence  suflficient 
to  charge  the  party  in  the  county  in  which  it  was  written,  is  a 
question  which  has  been  much  discussed,  and  at  length  settled  in 
the  affirmative.^ 

§  174.  The  colloquium  may  be  proved  by  witnesses,  having  knowl- 
edge of  the  parties  and  circumstances,  who  thereupon  testified 
their  belief  that  the  libellous  matter  has  the  reference  mentioned 
in  the  indictment;  but  it  may  also  be  proved  by  other  circum- 
stances, such  as  admissions  by  the  defendant  in  other  publications, 
kc?  It  is  not  necessary  to  show  that  the  libel  would  be  under- 
stood by  all  persons  to  apply  to  the  party  alleged  ;  it  is  sufficient 
if  it  were  so  understood  by  the  witnesses  themselves,  who  knew 
him.  But  they  must  understand  it  so  from  the  libel  itself;  for  if 
its  application  to  the  party  injured  be  known  or  understood  only 
by  reference  to  other  writings  for  which  the  defendant  is  not 
responsible,  this  will  not  be  sufficient.^ 

§  175.  It  is  sometimes  said  that  the  innuendoes,  also,  must  be 
proved  ;  but  this  inacduracy  arises  from  not  considering  their  pre- 
cise nature  and  office.  In  an  indictment  for  this  offence,  the 
averment  states  all  the  facts,  dehors  the  writing,  which  are  essential 
to  the  proper  understanding  of  the  libel  itself;  the  colloquium 
asserts  that  the  libel  was  written  of  and  concerning  the  party 
injured,  with  reference  to  the  matters  so  averred ;  the  innuendo  is 
merely  explanatory  of  the  subject-matter  sufficiently  expressed  be- 
fore, and  of  that  only ;  and  as  it  cannot  extend  the  sense  of  the 
words  beyond  their  own  proper  meaning,  it  is  not  the  subject  of 
proof.*  Whether  the  libel  relates  to  the  matters  so  averred,  is  a 
question  of  fact  for  the  Jury.^ 

§  176.  Whether,  by  the  common  law,  the  defendant,  in  an  in- 
dictment for  a  defamatory  libel  on  the  person,  could  give  the  truth 
in  evidence,  in  his  justification,  is  a  question  which  has  been  much 
debated  in  this  country.  By  the  common  law  as  held  in  England, 
the  truth  of  the  libel  was  not  a  justification  ;  but  this  has  been  re- 
cently modified  by  a  statute,  permitting  the  d&fendant,  in  an  in- 

1  Bex  V.  Burdett,  4  B.  &  Aid.  95,  per  «  Bonrke  v.  "Warren,  2  C.  &  P.  307. 
Abbott,  C.  J  ,  and  Best  and  Holroyd,  Js.,  *  Commonwealth  v.  Snelling,  15  Pick. 
Bayley,  J.,  dubitanfe.  335  ;  Rex  v.  Home,  Covvp.  683,  684  ;  Van 

2  2  Stark,  on  Slander,  51;  Chubb  v.  Vechten  v.  Hopkins,  5  Johns.  211,  220- 
Westley,  6  C.  &  P.  436.  And  see  ante,  223.  And  see  May  v.  Brown,  3  B.  &  C. 
Vol.  Q,'§  417.     See  Goodrich  v.  Davis,  11  113. 

Met.  473-485.  5  ibid. 


150  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

dictment  or  information  for  a  defamatory  libel,  in  addition  to  the 
plea  of  not  guilty,  to  put  in  a  special  plea  of  the  truth  of  the  mat- 
ters charged  ;  upon  which  plea  the  truth  may  be  inquired  into  ; 
and  if  the  Jury  find  the  matter  to  be  true,  and  that  the  publica- 
tion thereof  was  for  the  public  benefi^t,  it  constitutes  a  good  de- 
fence to  the  prosecution. 1  In  several  of  the  United  States  this 
doctrine  of  the  common  law,  though  denied  by  some  Judges,  was 
recognized  by  the  general  current  of  judicial  decisions,  as  of  bind- 
ing force  in  this  country  ;  but  it  has  since  been  modified  in  some 
States,  and  totally  abrogated  in  others,  by  constitutional  or  statutory 
provisions  ;  so  that  it  is  no  longer  to  be  admitted  as  a  rule  of  Amer- 
ican law.2  On  the  contrary,  it  will  now  be  found,  that,  to  an  extent 
more  or  less  limited,  as  will  be  shown,  the  truth  of  a  defamatory 
publication  brings  it  within  the  class  of  privileged  communications. 
§  177.  Thus,  in  some  of  the  United  States,  it  is  enacted  that  the 
truth  may  be  given  in  evidence,  in  all  criminal  prosecutions  for 
libel.  But  this,  it  is  conceived,  is  to  be  understood  of  libels  de- 
famatory of  the  person,  and  not  to  scandalous  libels  of  a  more  gen- 
eral character.  And  the  same  constructi6n  should  probably  be 
given  to  all  other  enactments  which  permit  the  truth  to  be  shown 
in  prosecutions  for  this  offence.  In  the  statutes  of  some  States,  it 
is  simply  declared  that  the  truth  may,  in  those  cases,  be  given  in 
evidence  ;  ^  in  others,  it  is  said  that  it  shall  be  a  justification  ;  * 
but  doubtless  the  effect  of  both  expressions  is  tlie  same.  Again,  it 
is  provided  in  the  Constitutions  of  several  States,  that  the  truth 
shall  be  admissible  in  evidence  as  a  justification,  in  prosecutions 
for  those  publications  which  concern  the  official  conduct  of  men  in 
public  office,  or  the  qualifications  of  candidates  for  public  office, 
or,  more  generally,  where  the  matter  is  proper  for  public  informa- 
tion ;  ^  other  cases,  it  seems,  being  left  at  common  law,  except 

1  Stat.  6  &  7  Vict.  ch.  96,  §  6.  See  p.  812;  Texas,  Stat.  Dec.  21,  1836,  §  33, 
Cooke  on  Defuination,  p.  467  ;  and  the  Hartley's  Di.ij.  Art.  2.'37.3,  p.  7-24. 
Kcport  of  the  Lords'  Coinniittcc,  with  tiie  *  Sec  Vermont,  Rev.  Stat.  18.'?9,  ch.  2.5, 
cvidencehcfore  them  on  the  subject  of  lil)el,  §68;  Man/latid,  Stat  1803,  ch.  .54,  Dor- 
Id.  ])p.  471  -  .512.  The  other  Kn;j;lish  Stat-  cey's  cd.  Vol.  1,  p.  48-2;  North  Carolina, 
utes  in  melioration  and  amendment  of  the  Rev.  Stat.  1837,  ch.  35,  §  13  ;  Tennessee, 
law  of  lihel  may  i)e  found  at  iarffc  in  the  Stat.  1805,  ch.  6,  §  2,  Car.  &  Nich.  Dip;,  p. 
same  work,  Ai)p.  No.  1,  pp.  403-407.  439;   Arkansas,  Const.  Art.  2,  §  8 ;    Rev. 

2  See  Kent,  Comm.  19-24.  Stat.  1837,  Div.  8,  ch.  44,  art.  2,  §  3,  p. 
8  Sec  Connrcliatt,    Const.    Art.   1,    §  7;     280.     In  /////lo/s,  the  truth  is  a  justification 

iVcio  ./ers/'V,  Rev.  Stat.  1846,  tit.  34,  ch.  11,  in  all   cases,   except  in    libels   tending-   to 

5.   964;    j//s.wi(rj.   Const.   Art.   13,  §   16;  blacken    the   memory  of  the   (kacl,  or   to 

fississlppi.  Rev.  Stat.  1840,  ch.  49,  §24;  expose    the  tmtural  defects   of  the  living. 

How.  &  Hut.  Di;;.  pj).  668,  669  ;   Gmrijln,  Rev.  Stat.  1845,  Crim.  Code,  §  120. 
Prince's  Dig.  p  644  ;  Cobb's  Dig.  Vol'.  2,         ^  gee  Ohio,  Const.  Art.  8,  §  6 ;  ludiuna, 


PART  v.]  LIBEL.  151 

where  it  may  be  otherwise  provided  by  statute.  And  other  States 
have  provided,  either  in  constitutional  or  statutory  enactments, 
that  the  truth  shall  constitute  a  good  defence,  in  all  cases,  provid- 
ed it  is  found  to  have  been  published  from  good  motives  and  for 
justifiable  ends.i  j^;  ^i^y^^  appears,  that  in  nearly  all  the  United 
States,  the  right  to  give  the  truth  in  evidence,  in  criminal  prosecu- 
tions for  libels,  is,  to  a  greater  or  less  extent,  secured  by  express 
law  ;  and  probably  would  not  now,  in  any  of  them,  be  denied.  It 
may  here  be  added,  that  by  the  Act  of  Congress  of  July  14,  1798, 
libels  on  the  Government,  or  Congress,  or  the  President,  were 
made  indictable  in  the  courts  of  the  United  States,  and  the  truth 
was  permitted  to  be  given  in  evidence,  by  the  defendant,  in  his 
justification.  This  Act,  though  of  limited  duration,  has  been  re- 
garded as  declaratory  of  the  sense  of  Congress,  that  in  prosecutions 
of  that  kind,  it  was  a  matter  of  common  right  for  the  defendant  to 
show  tliat  the  matter  published  was  true.^ 

§  178.  In  his  defence,  it  is  competent  for  the  defendant  to  show 
that  he  did  not  participate  in  the  publication  ;  or,  if  it  was  done 
by  his  servant,  that  it  was  against  his  express  orders,  or  out  of  the 
course  of  the  servant's  employment,  or  while  the  master  was  ab- 
sent, under  circumstances  rendering  it  physically  and  morally  im- 
possible for  him  to  prevent  it ;  or  that  it  was  done  by  deceiving 
and  defrauding  the  master.  Or  he  may  show,  by  other  passages 
in  the  same  book  or  newspaper  relating  to  the  matter,  or  referred 
to  in  tlie  libel  itself,  that  the  libel  was  not  defamatory,  or  criminal, 
in  the  sense  imputed  to  it.^     He  may  also  show  that  the  publica- 

Const.  Art.  1,  §  10;  Alabama,  Const.  Art.  any  other  libel,  it  must  be  free  from  any 

6,  §  14,  Stilt.  1807,  Toulm.  Dig.  tit.  17,  corrupt  or  malicious  motive.     Rev.  Stat, 

ch.  1,  §  46;    Pennsijlcuiiia,  Const.  Art.  9,  1840,  ch.   16.5,   §  5.     In  Illinois,   it  is  en- 

§  7  ;   Kentucky,  Const.  Art.  10,  §  8;   Dela-  acted,  that  "in  all  prosecutions  for  a  libel, 

ware,  Const.  Art.  1,  §  ."i:  Arkansas,  Const,  the  truth  thereof  may  be  given  in  evidence 

Art.  2,  §  8;    Maine,  Const.  Art.  1,  §  4;  in  justification,   except   libels   tending  to 

Ti'xas,  Const.   184.5,  Art.  1,  §6;    Illinois,  blacken  the  memory  of  the  dead,  or  expose 

Const.  Art.  8,  §  23  ;  Tennessee,  Const.  Art.  the  natural  defects  of  the  living."     llev. 

11,  §  19.  Stat.  1845,  ch.  30,  §  120.     In  New  Hamp- 

1  See  Massachusetts,  Rev.  Stat.  1836,  ch.  shire,  it  is  held  as  common  law,  that  if 

133,  §  6;    New  York,  Const.  Art.  7,  §  8 ;  there  was  a  lawful  occasion  for  the  publi- 

Rev.  Stat.  Vol.  1,  p.  95,  §  21  ;   Rhode  Isl-  cation,  and  tlie  matter  published  is  true, 

and,  Const.  Art.  1,  §  20  ;  Michi(]an,  Const,  the  motive  is  immaterial ;  and  that  though 

Art.  1,  §  7  ;    Wisconsin,  Const.  Art.  1,  §  3  ;  the  matter  be  not  true,  yet  the  publication 

Iowa,   Kev.  Code,   1851,  Art.  2769;    Flor-  may  be  excused,  by  showing  that  it  was 

ida,  Const.  Art.  1,  §  15,  Thompson's  Dig.  made  on  a  lawful  occasion,  upon  probable 

p.   498,    California,   Const.   Art.    1,    §   9;  cause,  and  from  good  motives.     The  State 

Stat.   1850,  ch.  99,  §  120.     In  Maine,  the  v.  Burnham,  9  N.  Hamp.  34. 

truth  will  justify  any  publication  respect-  '^  See  Laws  U.  States,   VoL   1,  p.  596 

ing  public  men,  or  proper  for  public  infor-  (Peters's  ed.),  2  Kent,  Comm.  24. 

mation,  irrespective  of  the  motive  of  pub-  ^  Rex  v.  Lambert,  2  Campb.  398. 
Ideation ;  but  to  justify  the  publication  of 


152  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

tion  was  privileged,  as  being  made  in  tlie  course  of  his  public  or 
social  duty.^  But  a  subsequent  publication  of  the  same  matter, 
when  not  required  by  such  duty,  as,  for  example,  the  printing  of  a 
speech  delivered  in  a  legislative  assembly,  or  the  like,  is  not  privi- 
leged.^ AVhether  the  printer  of  legislative  documents,  containing 
official  reports  defamatory  in  their  nature,  could  protect  himself 
Tinder  the  allegation  of  privilege,  by  showing  that  he  published 
them  by  order  of  the  legislature,  is  a  question  which  at  one  time 
greatly  agitated  the  British  public  ;  but  at  length  it  was  settled 
that  the  order  of  the  legislature  was  no  defence  to  an  action  at 
law.^ 

§  179.  The  right  of  the  Jury,  in  criminal  cases,  and  particularly 
in  trials  for  libel,  has  also  been  the  subject  of  much  discussion.  It 
was  formerly  held  that  where  there  were  no  circumstances  which 
raised  a  question  of  justification  in  point  of  law,  the  Jury  were 
bound  to  find  the  defendant  guilty  if  they  found  the  fact  of  publi- 
cation and  the  truth  of  the  innuendoes  ;  these  two  matters  of  fact 
being  all  which  they  were  permitted  to  inquire  into.'^  In  the 
United  States,  this  doctrine  is  not  known  to  have  been  received, 
but  on  the  contrary  it  has  been  so  distasteful  as  to  have  occasioned 
express  constitutional  and  statutory  provisions,  to  the  effect  that, 
in  all  such  cases,  the  Jury  may  render  a  general  verdict  upon  the 
whole  matter  under  the  issue  of  not  guilty.  The  language  of  the 
constitutions  of  some  States  is,  that  "  tlie  Jury  shall  be  judges  of," 
and  in  other  States,  "  shall  have  the  -right  to  determine,"  the  law 
and  the  facts.  In  many  of  the  constitutions  it  is  provided  that  the 
Jury  may  do  this  "  under  the  direction  of  the  Court,"  ^  or,  "  after 
having  received  the  direction  of  the  Court,"  ^  "  or,  as  in  other 
cases  "  ; '  but  in  other  constitutions  the  provision  is  unqualified.^ 

1  ASw/jra,  167,  176;  Goodnow  r.  Tappan,  tion    and    the    truth    of    the    innuendoes 

1  Ohio,  60.  alone. 

^  Rex  V.  Crcevey,  I  M.  &  S.  273,  278 ;  ^  Such  arc  the  constitutional  provi.sions 

Rex  V.  Ld.  Abin<^(lon,  1  Esp.  R.  226 ;  Oil-  in    Ohio,    Const.    Art.   8,    §   6  ;    Indiana, 

ver  17.  Ld.  Bcntinck,  .'5  Taunt.  456.  Const.  Art.  1,  §  10;  Alabama,  Const.  Art. 

"  Stotkdale  v.  Hansard,  9  Ad.  &  El.  1.  6,  §  14  ;    Peiiimi/lL-ania,  Const.  Art.  9,  §  7 ; 

*  Sec  Rc.x  V.  The  Dean  of  St.  Asaph,  Kentucki/,  Const.  Art.  10,  §8;   Conmrticut, 

3  T.  R.  429-4.32,  note,  where  the  practice  Const.  Art.  1,  §  7  ;    Missouri,  Const.  Art. 

is    historically  stateil    and    vindicated    by  13,  §16;  /////io/x,  Const.  Art.  8,  §  23  ;   Ten- 

Lord  Mansfield.     The  excitement  which  ne.s.sef,  Const.  Art.  11,  §  19. 

grew  out  of  this  and  some  other  cases,  ^  Sec  Maine,  Const.  Art.  1,  §4;   Iowa, 

caused   the  ])a,ssafre  of  the  statute  of  32  Rev.  Stats,  isil,  §  2772. 

Geo.  3,  ch.  60,  which  dirlares,  that  in  an  "  Sec  Delaware,  Const.  Art.  !,§.'}• 

indictment  or  inibrmation  for  a  lihel,  upon  *  See  Arkansas,  Const.  Art.  2,  §  8  ;   Cal- 

the  issue  of  not  jjTuilty,  the  Jurors  m:iy  re-  iforuia.   Const.  Art.    1,    §  9;    Niw   York, 

turn   a  general  verdict  upon    the   whole  C'onst.  Art.  7,  §  8 ;    Micliiijan,  Const.  Art. 

matter,  and  not  upon  the  fact  of  publica-  1,  §  7;  Florida,  Const.  Art.  1,  §  1.5;    Wis- 


PART  v.]  LIBEL.  153 

Upon  these  provisions  a  fiirtlier  question  has  been  raised,  whether 
the  Jury  were  bound  to  follow  the  directions  of  the  Court,  in  mat- 
ters of  law,  or  were  at  liberty  to  disregard  them,  and  determine 
the  law  for  themselves.  On  this  point,  the  decisions  are  not  en- 
tirely uniform  ;  and  some  of  them  are  not  perfectly  clear,  from  the 
want  of  discriminating  between  the  power  possessed  by  the  Jury  to 
find  a  general  verdict,  contrary  to  the  direction  of  the  Court  in  a 
matter  of  law,  without  being  accountable  for  so  doing,  and  their 
right  so  to  do,  without  a  violation  of  their  oath  and  duty.  But  the 
weight  of  opinion  is  vastly  against  the  right  of  the  Jury,  in  any 
case,  to  disregard  the  law  as  stated  to  them  by  the  Court ;  and,  on 
the  contrary,  is  in  favor  of  their  duty  to  be  governed  by  such  rules 
as  the  Court  may  declare  to  be  the  law  of  the  land  ;  the  meaning 
of  the  constitutional  provisions  being  merely  this,  that  the  Jury  are 
the  sole  judges  of  all  the  facts  involved  in  the  issue,  and  of  the  ap- 
plication of  the  law  to  the  particular  case.^ 

consin.  Const.  Art.  1,  §3;  Texas,  Const.  Pine,  2  Barb.  (S.  C.)  R.. 566.    [*  It  has  been 

(1845),  Art.  1,  §  6.     In  this  last-mentioned  considerably  discussed  in  recent  cases,  how 

State,  in  the  Constitution  of  1836,  Decla-  far  corporations  will  be  held  responsible, 

ration  of  Riglits,  Art.  4,  the  words,  "  un-  as  such,  for  the  publication  of  libels  by  their 

der  the  direction    of    the   Court,"    were  directors  or  agents  in  the  due  course  of  the 

added ;  but  in  the  revised  Constitution  of  business  of  the  corporation.     It  was  held, 

1845,  they  were  omitted.  in    Whitfield   v.   South-Eastern    Railway 

1  This  question  was  very  fully  and  ably  Company,  1  Ellis  B.  &  Ellis,  115;  S.  C. 

considered  in  the  United  States  v.  Battiste,  4  Jur.  N.  S.  688,   that  the   company   are 

2  Sumn.  243  ;  The  Commonwealth  v.  Por-  responsible  for  the  publication  of  a  libel  by 

ter,  10  Met.  263;  Pierce  v.  The  State,  13  the  directors,  in  giving  instructions  by  tel- 

N.  Hamp.  536  ;  The  United  States  v.  Mor-  egraph  to  their  agents  at  the  different  sta- 

ris,  4  Am.  Law  Journ.  241,  N.   S. ;   in  tions,  that  the  plaintiffs' bank  "  had  stopped 

which  cases  the  other  American  and  the  payment."      So   the  corporation  will   be 

English  authorities  are  reviewed.     And  see  held  responsible   for  circulating  libellous 

ante,  Vol.  1 ,  §  49   [*  and  notes  to  present  matter  in  a  report  of  its  directors,  with  the 

edition];  Townsend  w.  The  State,  2  Blackf.  accompanying  evidence,  even  when  made 

151;   Warren   v.  The   State,  4  Id.   150;  to   the  stockholders.      Philadelphia,    Wil- 

Armstrong  v.  The  State,  Id.  247  ;  Hardy  mington  &  Baltimore  Railway  Co.  v.  Quig- 

V.  The  State,  7  Mis.  607  ;  The  People  v.  ley,  21  How.  U.  S.  202.] 


1'54  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 


MAINTENANCE. 

[♦  §  180.    Champerty  and  maintenance  distinguished. 
181.   Allegations  in  indictment. 
182  and  183.   Defences.] 

§  180.  This  crime  is  said  to  consist  in  the  unlawful  taking  in 
hand  or  upholding  of  quarrels  or  sides,  to  the  disturbance  or  hin- 
derance  of  common  right.^ '  It  is  of  two  kinds,  namely,  Ruralis, 
or  in  the  country,  and  CuriaUs,  or  in  the  courts.  The  former  is 
usually  termed  GhainiJerty  ;  and  is  committed  where  one  upholds 
a  controversy,  under  a  contract  to  have  part  of  the  property  or 
subject  in  dispute.  The  latter  alone  is  usually  termed  Mainteyi- 
ance ;  and  is  committed  where  one  officiously,  and  without  just 
cause,  intermeddles  in  and  promotes  the  prosecution  or  defence  of 
a  suit  in  which  he  has  no  interest,  by  assisting  either  party  with 
money,  or  otherwise.^  Both  species  of  this  crime  are,  in  some 
form  or  other,  forbidden  by  statutes,  in  nearly  all  the  United 
States  ;  but  the  common  law  is  still  conceived  to  be  in  force,  where 
it  has  not  been  abrogated  by  the  statute.^ 

§  181.  Tiie  indictment  charges,  in  substance,  that  the  defend- 
ant unjustly  and  unlawfully  maintained  and  upheld  a  certain  suit, 
pending  in  such  a  court  (describing  them),  to  the  manifest  hin- 
derance  and  disturbance  of  justice.  If  the  offence  was  strictly 
champerty,  and  consisted  in  the  buying  of  a  pretended  or  disputed 
title  or  claim  to  property  from  a  grantor  or  vendor  out  of  posses- 
sion, the  facts  are  specially  stated  in  the  indictment.     In  either 

1  1   Hawk,  P.  C.  ch.  83,  §  1  ;   1  Inst.  Beauchamp,  5  Monroe,  416.     In  Ohio,  and 

368,  1). ;  2  Inst.  212.  in  Illinois,  it  has  been  hehl,  tliat  a  convey- 

-  Il)i<l. ;    Thallhimcr  v.  Brinckerhoff,  3  ance  by  one  who  is  disseised,  is  not  void 

Cowen,  62;j ;    20  Jolins.  386 ;    1  Russ.  on  for  champerty.     Hall  v.  Ashby,  9  Ham. 

Crimes,  p.  175;  Holloway  r.  Lowe,  7  Port.  96;    Willis  f>!  Watson,  4  Scani.  64.     [In 

488.  New  York,,  the  statutes  contain  all  the  law 

*  Wolcott  i\  Kniy:ht,  6  Mass.  421 ;   Ev-  in  force  on  the  subject.     Sedgwick  v.  Stan- 

erendcn  v.  Heaumont,  7  Mass.  78 ;    Swett  ton,  4  Kern.  289.]     [*  The  act  of  Henry 

?'.  Poor,  11  Mass.  b'y'S;  Thurston  v.  Perci-  VIII.  is  not  rif;idlv  enforced  in  this  coun- 

val,   1   Pick.  416;    Brinhy  r.    Whiting,  .5  trv.     Wood  ;•.  Mclinirc,  21  Geo.  .583.    See 

Pick.  359  ;    Key  r.  Vattier,  1  Ham.   132;  Danforth  i'.  Streeter,  28  Vt.  490.] 
Kust  V.  Larue,  4   Litt.   417;    Brown   v. 


PAET  v.] 


MAINTENANCE.  15f 


case,  the  charge,  being  properly  made,  is  supported,  jjrimd  facie  by- 
evidence  of  the  specific  facts  alleged  ;  as,  that '  the  defendant 
assisted  another  with  money  to  carry  on  his  cause  ;  or  did  other- 
wise bear  him  out  in  the  whole  or  part  of  the  expense  of  the 
suit ;  or  induced  a  third  person  to  do  so  ;  ^  or,  bargained  to  carry 
on  a  suit,  in  consideration  of  having  part  of  the  thing  in  dispute  ;  ^ 
or  purchased  the  interest  of  a  party  in  a  pending  suit  ^  ;   or  the 

like. 

§  182.  The  defendant,  in  his  defence,  may  avoid  the  charge,  by 
evidence  that  the  act  was  justifiable  ;  as,  that  he  already  had  an 
interest  in  the  suit,  in  which  he  advanced  his  money,  though  it 
were  but  a  contingent  interest ;  *  or,  that  he  was  nearly  related  by 
blood  or  marriage  to  the  party  whom  he  upheld,  even  though  he 
were  but  a  step-son  ;  ^  or,  was  related  socially,  as  a  master  or  ser- 
vant ;*'  or,  that  he  assisted  the  party  because  he  was  a  poor  man, 
and  from  motives  of  charity  ; '  or,  that  the  defendant  was  interested 
with  others  in  the  general  question  to  be  decided,  and  that  they 
merely  contributed  to  the  expense  of  obtaining  a  judicial  determi- 
nation of  that  question.^ 

§  183.  If  the  defendant  is  charged  with  knowingly  hui/ing  or 
selling  land  in  jyossession  by  another  under  an  adverse  claim  of  title, 
with  intent  to  disturb  that  possession,  the  charge  may  be  resisted 
by  evidence  that  such  possession  was  not  of  a  nature  to  throw  any 
doubt  upon  the  title  ;  as,  if  it  were  under  a  mere  quitclaim  deed, 
from  a  naked  possessor  or  occupant,  who  claimed  no  title  ;  ^  or, 
that  the  adverse  possession  was  of  only  a  small  proportion  of  the 
land,  and  that  the  entire  agreement  of  sale  was  made  in  good 
faith,  and  not  with  the  object  of  transferring  a  disputed  title  ;  ^^  or, 

1  1  Hawk.  P.  C.  ch.  83,  §§  4,  5 ;'  1  Russ.         ^  Arden  v.  Patterson,  5  Johns.  Ch.  44. 
on  Crimes,  175.  •  *  Thallhimer  v.  BrinckerhofF,  3  Co  wen, 

-  Thallhimer  v.  BrinckerhofF,  3  Cowen,  623  ;  Williamson  v.  Henley,  6  Bing.  299  ; 

623;    Lathrop  v.  Amherst  Bank,   9  Met.  1  Hawk.  P.  C.  ch.  83,  §§  12-19;    Wick- 

489.     (*  A  miaranty  by  an  attorney  of  a  ham  v.  Conklin,  8  Johns.  220. 
claim  left  A\'ith  him  for  collection  is  not         '"  Campbell  v.  Jones,  4  Wend.  306,  310. 

champertous.     Gregory  v.  Gleed,  33  Vt.  If  he  is  heir  apparent,  it  is  sufficient,  how- 

40.5.     Nor  the  transfer  by  assignment  to  ever  remotely  related.     1  Hawk,  P.  C.  ch. 

the  attornev  of  the  subject-matter  of  the  83,  §  20. 

suit,   for  the  purpose  of  security  for  his         «  1  Hawk.  P.  C.  ch.  83,  §§  23,  24. 
charges,   althouah  it   seems    an'  absolute         ''  Perine  v.  Dunn,  3  Johns.  Ch.  508. 
sale  would  be  champertous.     Anderson  v.         ^  Gowen  v.  Nowell,  1  Greenl.  292 ;  Frost 
Radcliffe,  1  Ellis,  B.  &  E.  806.     That  the  w.  Paine,  12  Maine,  111. 
agreement   for    the   compensation  of  the         ^  Jackson  v.  Hill,  5  Wend.  532;  Jack- 
plaintiff's  attorney  is  champertous,  is  not  son  v.  Collins,  3  Cowen,  89. 
a  defence  of    which   the    defendant   can         ^"'  Van  Dyck  v.  Van  Beuren,  1  Johns, 
avail  himself,     llobison  v.  Beall,  26  Geo.  345  ;  [Danforth  v.  Streeter,  2  Wms.  (Vt.) 
17.1  490.] 


156 


LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V. 


that  the  purchase  was  made  for  the  purpose  of  confirming  his 
own  title  ;  ^  or  the  like.  The  party  selling  is  presumed  to  know 
of  the  existence  of  an  adverse  possession,  if  there  be  any  ;  ^  but 
this  may  be  rebutted  by  counter  evidence  on  the  part  of  the  de- 
fendant.^ 


1  Wilcox  V.  Calloway,  1  Wash.  38. 
[*  A  devise  or  conveyance  between  near 
relations,  of  land  held  adversely  or  in  liti- 
gation is  good  and  not  champertous.  Mor- 
ris V.  Henderson,  37  Miss.  492.  The  pol- 
icy prohibiting  the  sale  of  lands  in  the  ad- 
verse possession  of  another,  is  not  appli- 
cable to  judicial  and  official  sales.     Hanna 


V.  Renfro,  32  Miss.  125.     Cook  v.  Travis, 
20  N.  Y.  400.] 

2  Hassenfrats  v.  Kelly,  13  Johns.  466 ; 
Lane  v.  Shears,  1  Wend.  433 ;  Etheridge 
V.  Cromwell,  8  Wend.  629. 

3  Ibid.  And  see  Jackson  v.  Demont,  9 
Johns.  55;  Swett  v.  Poor,  11  Mass.  549, 
554. 


PART  v.]  NUISANCE.  157 


NUISANCE. 

[*  §  184.   Various  acts  constituting  common  nuisance. 

185.  Indictment  alleges  fact  to  be  to  the  common  nuisance  of  all  citizens  of  the 

State. 

186.  Act  of  defendant,  and  that  it  was  to  the  common  injury  of  the  public  must 

be  proved. 

187.  Defences.     Cannot  be  shown  that  act  causes  public  benefit  equal  to  incon- 

venience.] 

§  184.  Common  Nthsances  are  a  species  of  offence  against  the 
public  order  and  economical  regimen  of  the  State  ;  being  either 
the  doing  of  a  thing  to  the  annoyance  of  all  the  citizens,  or  the 
neglecting  to  do  a  thing  which  the  common  good  requires.^  More 
particularly  it  is  said  to  comprehend  endangering  the  public  per- 
sonal safety  or  health  ;  or  doing,  causing,  occasioning,  promoting, 
maintaining,  or  continuing  what  is  noisome  and  offensive,  or  an- 
noying and  vexatious,  or  plainly  hurtful  to  the  public,  or  is  a  pub- 
lic outrage  against  common  decency  or  common  morality,  or  tends 
plainly  and  directly  to  the  corruption  of  the  morals,  honesty,  and 
good  habits  of  the  people  ;  the  same  being  without  authority  or 
justification  by  law.^  Hence,  it  is  indictable,  as  a  common  nui- 
sance, to  carry  on  an  offensive  trade  or  manufacture  in  a  settled 
neighborhood  or  place  of  usual  public  resort  or  travel,  whether  the 
offence  be  to  the  sight,  or  smell,  or  hearing  ;  ^  or,  to  expose  the 
citizens  to  a  contagious  disease,  by  carrying  an  infected  person 
through  a  frequented  street,  or  opening  a  hospital  in  an  improper 
place  ;  ^   or,  to  make  or  keep  gunpowder  in  or  near  a  frequented 

1  1  Hawk.  P.  C.  ch.  75,  §  1 ;  4  Bl.  v.  Neville,  1  Peake,  91 ;  The  People  v. 
Comm.  166;  1  Russ.  on  Crimes,  318.  Cunningham,  1  Denio,  524.  [*  And  the 
[*  What  amount  of  annoyance  or  incon-  smell  need  not  be  injurious  to  health,  but 
venience  will  constitute  a  nuisance,  being  only  offensive  to  the  senses.  State  v. 
a  question  of  degree,  dependent  on  vary-  Wetherall,  5  Barring.  487.  Where  a  rail- 
ing circumstances,  cannot  be  precisely  de-  road  authorized  by  its  charter  to  be  made 
fined.  Columbus  Gas,  &c.  Co.  v.  Free-  at  one  place,  is  made  at  another,  it  is  a 
land,  12  Ohio  (N.  S.),  392.]  mere  nuisance  on  every  highway  it  touches 

'^  Report  of  Massachusetts  Commission-  in  its  illegal  course.      Commonwealth  v. 

ers  on  Crim.  Law,  tit.  Common  Nuisance,  Erie  &  North  East  R.  R.  Co.,  27  Penn.  St. 

§  1.     [*  Profane  cursing  and  swearing  in  339.] 

public  is  indictable  as  a  common  nuisance.  *  Rex  v.   Vantandillo,  4  M.  &  S.  73; 

State  V.  Graham,  3  Sneed  (Tenn.),  134.]  Rex  v.  Burnett,  4  M.  &  S.  272;  Anon.  3 

3  Rex  V.  Pappineau,  1  Stra.  686 ;  Rex  Atk.  750. 


15S 


LAAV   OF   EVIDENCE   IN   CRDIINAL   CASES. 


[part  v. 


place,  without  authority  therefor  ;  ^  or,  to  make  great  noises  in  the 
night,  by  a  trumpet,  or  the  like,  to  the  disturbance  of  the  neigh- 
borhood ;  2  or,  to  keep  a  disorderly  house  ;  ^  or,  a  house  of  ill- 
fame;*  or,  indecently  to  expose  the  person  ;5  or,  to  be  guilty  of 
open  lewdness  and  lascivious  behavior  ;  ^  or,  to  be  frequently  and 
publicly  drunk,  and  in  that  state  exposed  to  the  public  view  ;  ^  or, 
to  be  a  common  scold  ;  ^  or,  a  common  eavesdropper  ;  ^  or,  to 
obstruct  a  public  highway .1°  Many  of  these,  and  some  others, 
which  are  also  offences  by  the  common  law,  are  forbidden  by 
particular  statutes,  upon  which  the  prosecutions  are  ordinarily 
founded. ^^ 

§  185.  The  indictment  for  this  offence  states  the  facts  which 
form  the  subject  of  the  charge,  alleging  it  to  be  to  the  common 
nuisance  of  all  the  citizens  of  the  State  or  Common  wealth. ^^  But 
if  the  subject  be  one  which  in  its  nature  necessarily  tends  to  the 
injury  of  all  tlie  citizens,  such  as  obstructing  a  river  described  as  a 
public  navigable  river,  or  a  way  described  as  a  public  highway,  or 
the. like,  it  is  said  to  be  sufficient,  without  any  more  particular 
allegation  of  common  nuisance.^^ 


1  Rex  r.  Taylor,  2  Stra.  1167;  The 
People  V.  Sands.  I  Johns.  78.  [See  also 
Regina  v.  Lister,  1  Dears.  &  B.  209,  where 
it  was  held  a  nuisance  to  keep  a  lai-ue 
quantity  of  naphtha,  a  hiyhly  intlamniable 
substance,  stored  in  larae  quantities,  in  a 
thickly  pojjulated  neighborhood.] 

-  Hex  V.  Smith,  1  Stra.  704 ;  Common- 
wealth (-'.  Smith,  6  Cush.  80. 

3  Rex  V.  Hig-inson,  2  Burr.  12-32;  13 
Piek.  .362;  The  State  v.  Bertheol,  6 
Blackf.  474 ;  The  State  o.  Bailey,  1  Fos- 
ter (N.  II.),  .34.3. 

«  1  Hawk.  P  C.  ch.  74 ;  Id.  ch.  7.5,  §  6. 
5  Rex  V.  Sedley,  1  Keb.  G30 ;  Sid.  168; 
Rex  V.  Crunden,  2  Campb.  89;  The  State 
V.  Koper,  1  Dev.  &  Bat.  208.  An  indecent 
cx])0sure,  thmigh  in  a  jdaee  of  jjublic  re- 
sort, if  visible  only  by  otie  person,  no  other 
person  being  in  a  position  to  see  it,  is  not 
indictable  as  a  common  nuisance.  Regina 
V.  Webb,  .3  Cox,  C.  C.  .338;  1  Leading 
Crim.  Cases,  442;  1  Denison,  C.  C.  328; 
2  C.  &  K.  9.33 ;  Temp.  &  Mew.  C.  C  23 ; 
Regina  ".  Watson,  2  Cox,  C.  C.  376;  I 
Leading  Crim.  Cases,  44.5,  note.  [*  But 
it  is  not  necessary  that  the  exjiosure  should 
l>c  made  in  a  place  open  to  the  public.  If 
the  act  is  done  where  a  great  number  of 
persons  may  see  it  and  several  ib)  sei;  it,  it 
is  sufficient.  Reg  '•.  Thaliman.  9  Cox,  C. 
C.  388. 1  An  indictment  for  tliis  otfencc 
need  not  conclude   to   the  common   nui- 


sance. Commonwealth  w.  Haynes,  2  Gray, 
72.  .  But  see  Regina  v.  Webb,  iibi  supra; 
Re"-ina  v.  Holmes,  1 7  Jur.  562  ;  1  Leading 
Crim.  Cases,  452 ;  3  C.  &  K.  360 ;  6  Cox, 
C.  C.  216 ;  20  Eng.  Law  &  Eq.  R.  597. 

6  1  Hawk.  P.  C.  ch.  5,  §  4  ;  1  Russ.  on 
Crimes,  326;  Grisham  v.  The  State,  2 
Yerg.  589 ;  The  State  v.  Moore,  I  Swan, 
136.^ 

"  Smith  V.  The  State,  1  Humph.  396 ; 
The  State  v.  Waller,  3  Murph  229.  See 
Commonwealth  v.  Boon,  2  (iray,  74. 

s  1  Hawk.  P.  C.  ch.  75,  §§  5,  14;  4  Bl. 
Comm.  168;  1  Russ  on  Crimes,  327. 

9  4  Bl.  Comm.  IGS;  1  Russ.  on  Crimes, 
327. 

w  4  Bl.  Comm.  167  ;  1  Hawk.  P.  C.  ch. 
76. 

11  See,  for  the  Law  of  Common  Nuisan- 
ces, Whart.  Am.  Crim.  Law,  pp.  698- 
706,  and  cases  there  cited. 

1'^  The  indictment  should  conclude  to 
the  common  nuisance  of  n//  the  citizens,  etc. 
Commcm wealth  v.  Faris,  5  Rand.  691  ; 
Commonwealth  v.  Smith,  6  Cush.  80; 
Hayward's  ca.se,  Cro.  El.  148  ;  •  Common- 
wealth I'.  Boon,  2  (ifay,  74,  1^  ;  Graffins 
V.  The  Comnionwealth,"3  I'enn.  502  ;  Dun- 
naway  v.  Tlie  State,  9  Yerg.  350.  But 
see  Commonwealth  v.  Havncs,  2  Gray,  72. 
13  1  Hawk.  P.  C.  ch.  75,  §§  3,  4,  5 ;  1 
Russ.  on  Crimes,  329. 


PART  v.]  XUISANCE.  159 

§  186.  Ill  proof  of  the  charge,  evidence  must  be  adduced  to 
show,  1st,  tliat  the  act  complained  of  was  done  by  the  defendant ; 
and  this  will  suffice,  though  he  acted  as  the  agent  or  servant  and 
by  the  command  of  another  ;  ^  2d,  that  it  was  to  the  common  in- 
jury of  the  public,  and  not  a  matter  of  mere  private  grievance. 
And  this  must  be  shown  as  an  existing  fact,  and  not  by  evidence 
of  reputation. 2  If  the  act  done  or  neglected  is  charged  as  a  com- 
mon nuisance  on  the  ground  that  it  is  offensive,  annoying,  or  prej- 
udicial to  the  citizens,  it  must  be  shown  to  be  actually  and  sub- 
stantially so  ;  for  groundless  apprehension  is  not  sufficient ;  and 
mere  fear,  though  reasonable,  has  been  said  not  to  create  a  nui- 
sance ;  ^  neither  is  slight,  uncertain,  and  rare  damage.* 

§  187.  In  the  defence,  it  is  of  course  competent  to  give  evidence 
of  any  facts  tending  to  disprove  or  to  justify  the  charge. ^  But 
the  defendant  will  not  be  permitted  to  show  that  the  public  bene- 
fit resulting  from  his  act,  is  equal  to  the  public  inconvenience 
which  arises  from  it ;  for  this  would  be  permitting  a  private  per- 
son to  take  away  a  public  right,  at  his  discretion,  by  making  a 
specific  compensation.^  But  it  seems  that  such  evidence  may  be 
admitted  to  the  Court,  in  mitigation  of  a  discretionary  fine  or 
penalty.'^     If  the  charge  is  for  obstructing  a  public  river,  by  per- 

1  The  State  v.  Bell,  5  Port.  365 ;  The  came  so  inhabited  and  used  by  the  public 
State  V.  Mathis,  1  Hill  (S.  C.),  37  ;  [Com-  as  to  make  it  a  common  nuisance.  Com- 
monwealth V.  Mann,  4  Gray,  213.]  monwealth  v.  Upton,  6  Gray,  472.     And 

2  Commonwealth  v.  Stewart,  1  S.  &  R.  see  Douglass  v.  State,  4  Wis.  387. J 
342;  Commonwealth  i'.  Hopkins,  2  Dana,  [*  State  v.  Phipps,  4  Ind.  515.  A  struc- 
418.  ture   authorized    by   the    legislature   can- 

3  Anon.  3  Atk.  751,  perLd.  Hardwicke.  not  be  a  public  nuisance.  People  y.  Law, 
And  see  1  Russ.  on  Crimes,  318  ;  Report  34  Barb.  N.  Y.  494.  See  also,  Common- 
Mass.  Comm.  tit.  Common  Nuisance,  §  2  ;  wealth  V.  Reed,  34  Penn.  St.  R.  275. 
Rex  V.  White,  1  Burr.  333.  [*  Under  a  Stoughton  v.  State,  5  Wis.  291.  Griffing 
statute  making  a  house  used  for  prostitu-  v.  Gii)b,  1  McAll.  C.  C.  (Cal.)  212.  In 
tion,  gambling,  or  the  sale  of  intoxicating  State  v.  Freeport,  43  Maine,  198,  it  is  held 
liquors  a  common  nuisance,  proof  that  the  that  if  a  bridge,  built  under  due  authority, 
nuisance  was  kept  and  maintained  for  two  across  a  navigable  river,  obstruct  naviga- 
hours,  is  sufficient  to  support  the  indict-  tion  more  than  is  reasonably  necessary,  it 
ment.  Commonwealth  v.  Gallagher,  1  is  a  nuisance  and  the  subject  of  indict- 
Allen,  592.1  ment.] 

*  Rex  V.  Tindall,  6  Ad.  &  El.  143 ;    1  «  Rex  v.  Ward,  4  Ad.  &  El.  384  ;    over- 

Nev.  &  Per.  719.     See  Regina  y.  Charles-  ruling  Rex  v.  Russell,  6  B.  &  C    566;   9 

worth,  16  Q.  B.  1012  ;  22  Eng.  Law  &  Eq.  Dowl.  &  Kyi.  566,  in  which  the  contr.-iry 

I^.  235.             •  had  been  held.     And  see  ace.  Rcspublica 

'^  [But  no  length  of  time  will  justify  a  v.  Caldwell,  1  Dall.  150.  See  also  He- 
public  nuisance.  1  Russ.  on  Crimes  (7th  gina  v.  Randall,  Car.  &  M.  496;  Rex  v. 
Am.  ed.),  330 ;  Mills  v.  Hall,  9  Wend.  Morris,  I  B.  &  Ad.  441  ;  Regina  v.  Betts, 
315;  The  People  u.  Cunningham,  1  Den.  16  Q.  B.  1022;  22  Eng.  Law  &  Eq.  R. 
536;  [*But  qumre,  House  v.  Metcalf,  27  240;  Kegina  y.  Sheffield  G.as  Co.  Id.  200. 
Conn.  631.]  And  it  is  no  defence  to  an  [*  Rcdfield  on  Railways,  Vol.  2,  §§  223 
indictment  for  carrying  on  a  noxious  trade,  and  226.] 

that  it  had  been  carried  on  for  more  than  ^  The  State  v.  Bell,  5  Port.  365. 
twenty  years,  before  the  neighborhood  be- 


160  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

mitting  bis  sunken  ship  to  remain  there,  the  defendant  may  show 
that  the  ship  was  wrecked  and  sunken  without  his  fault ;  ^  and  the 
same  principle,  it  is  conceived,  will  apply  to  any  other  case  or  ac- 
cidental obstruction.  The  navigable  or  public  character  of  the 
river  or  highway  may  also  be  controverted  by  evidence. ^ 

1  Rex  V.  "Watts,  2  Esp.  R.  675.     Q^ucere,  does  not  contribute,  for  example,  a  bar  in 

whether  it  is  not  requisite  for  the  defend-  a  stream  formed  by  natural  causes  seems 

ant,  in  such  cases,  to  show  that  he  has  re-  to  be  no  nuisance.      Mohr  v.   Gavdt,   10 

linquished   and   abandoned   all  claim  or  Wis.  513.     When  a  public  nuisance  has 

right  of  property  in  the  wreck.     And  see  become  the  subject  of  judicial  investiga- 

Brown  v.  Mallett,  5  C.  B.  599,  617-620.  tion,  the  power  of  a  private  citizen  to  re- 

-  Commonwealth   v.   Chapin,    5    Pick,  move  it  is  gone.     Commonwealth  v.  Erie 

199.     [*  It  seems   that  nothing  can  be  a  &    Northeast    R.  R.   Co.   27    Penn.    St. 

"nuisance"  to  which  the  agency  of  man  379.J 


PABT  v.]  PERJURY.  161 


PERJURY. 

[*  §  188.   Grenerally  subject  of  statute  provisions.     Subornation  of  peijnry  punishable 
at  common  law. 

189.  Reqiiisites  of  indictment, 

190.  Character  of  proceedings  in  which  perjury  may  be  committed. 

191.  Competency  of  witness  not  important. 

192.  Proof  of  the  oath  taken. 

193.  Proof  of  the  substance  of  one  assignment  sufficient. 

194.  Oral  testimony  of  prisoner  need  not  be  proved  ipsissimis  verbis. 

195.  Must  have  been  material,  but  degree  of  materiality  not  important. 

196.  Materiality  determined  by  reference  to  the  time  when  testimony  was  given. 

197.  Materiality,  how  proved. 

198.  "Wilful  falsity  need  not  be  proved  by  two  witnesses. 

199.  Circumstances  showing  wilful  falsehood. 

200.  Swearing  rashly  to  a  matter  which  witness  never  saw  nor  knew,  peijury. 

201.  Want  of  jurisdiction  in  court  or  magistrate  before  whom  testimony  is  given, 

or  mistake,  or  immateriality  of  evidence,  defence. 

202.  Prosecutor  now  put  in  same  position  as  any  other  witness.] 

§  188.  This  crime  is  the  subject  of  statute  provisions,  to  a 
greater  or  less  extent,  in  all  the  United  States  ;  and  in  some 
statutes  it  is  particularly  defined  ;  but  cases,  not  provided  for  by- 
statute,  are  understood  to  remain  offences  at  common  law.  The 
crime,  as  described  in  the  common  law,  is  committed  when  a  lawful 
oath  is  administered,  in  some  judicial  proceedings  or  due  course  of 
justice,  to  a  person  who  swears  wilfully,  absolutely  and  falsely,  in  a 
matter  material  to  the  issue  or  point  in  question.^  Where  the 
crime  is  committed  at  the  instigation  or  procurement  of  another, 
it  is  termed  subornation  of  perjury,  in  the  party  instigating  it ;  and 
is  equally  punishable  by  the  common  law.^  And  though  the  per- 
son thus  instigated  to  take  a  false  oath,  does  not  take  it,  yet  the 
instigator  is  still  liable  to  punishment.^ 

§  189.   The  indictment  for  perjury  will  of  course  specify  all  the 

1  3  Inst.  164 ;    4  Bl.    Comm.   137 ;    1  a  party,  who  is  charged  with  subornation 

Hawk.  P.   C.   ch.  '69,   §  1 ;    2  Russ.   on  of  perjury,  know  that  the  testimony  of  a 

Crimes,  596 ;    Whart.   Am.    Crim.  Law,  witness  whom  he  called  would  be  false,  yet 

650.  if  he  did  not  know  that  the  witness  would 

*  Commonwealth  v.  Douglass,  5  Met.  wilfully  testify  to  a  fact,  knowing  it  to  be 

241.  false,  he  cannot  be  convicted.     Common- 

3  1  Hawk.  P.  C.  ch.  69,  §  10.     Though  wealth  v.  Douglass,  5  Met.  241. 

VOL.  III.  11 


162  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PaRT  V. 

facts  essential  to  this  ofifence ;  namely,  1st,  the  judicial  proceedings 
or  diie  course  of  justice,  in  which  the  oath  was  taken  ;  2dly,  the 
oath,  lawfully  taken  by  the  prisoner  ;  3dly,  the  testimony,  which  he 
gave  ;  4thly,  its  materiality  to  the  issue  or  point  in  hand  ;  and, 
5thly,  its  wilful  falsehood. 

§  190.  In  regard  to  the  character  of  the  proceeding  in  which  the 
oath  is  taken,  it  may  be  stated,  as  the  general  principle,  that  wher- 
ever an  oath  is  required  in  the  regular  administration  of  justice, 
or  of  civil  government  under  tlie  general  laws  of  the  land,  the 
crime  of  perjury  may  be  committed.  It  has  therefore  been  held 
sufficient,  if  it  be  proved  that  the  crime  was  committed  by  the  pris- 
oner, in  his  testimony  orally  as  a  witness  in  open  Court,  or  in  an 
information  or  complaint  to  a  magistrate,  or  before  a  commissioner 
or  a  magistrate,  in  his  deposition  ;  or  before  a  State  magistrate, 
under  an  act  of  Congress  ;  ^  in  any  lawful  Court  whatever,  whether 
of  Common  Law,  or  Equity  ;  ^  or  Court  Ecclesiastical ;  ^  of  record, 
or  not  of  record  ;  *  and  whether  it  be  in  the  principal  matter  in 
issue,  or  in  some  incidental  or  collateral  proceeding,  such  as  before 
the  Grand  Jury,  or  in  justifying  bail,^  or  the  like  ;  and  whether  it 
be  as  a  witness,  or  as  a  party,  in  his  own  case,  where  his  testimony 
or  affidavit  may  lawfully  be  given.^  And  where,  upon  qualifica- 
tion for  any  office  or  civil  employment,  of  honor,  trust,  or  profit, 
an  oath  is  required  of  the  person,  stating  some  matter  of  fact,  a 
wilful  and  corrupt  false  statement  in  such  matter,  is  perjury.'''  It 
is  sufficient,  if  it  appear  primd  facie,  thsLt  the  Court  had  jurisdic- 
tion of  the  matter,  and  that  the  Judge,  Magistrate,  or  Officer,  be- 
fore whom  the  oath  was  taken  was,  de  facto,  in  the  ordinary  exer- 
cise of  the  office  ;  ^  such  evidence  on  the  part  of  the  prosecution, 

1  1  Hawk.  P.  C.  ch.  69,  §  3 ;  2  Chitty,  Roll.  Abr.  39,  40 ;  Royson's  case,  Cro. 
Crim.  Law,  443,  44,5;  Regina  r.  Gardner,  Car.  146;  Commonwealth  v.  White,  8 
8  C.  &  P.  7.37  ;  Carpenter  y.  The  State,  4  Pick.  45.5  ;  The  State  v.  UtYutt,  4  Blackf. 
How.  (Miss.  R.),  163;  United  States  y.  355;  The  State  y.  Passctt,  16  Conn.  457; 
Bailey,  9  Peters,  238.  [Whether  perjury  The  State  v.  Moffatt,  7  Humph.  250. 
in  a  naturalization  proceeding  before  a  "^  1  Hawk.  P.  C.  ch.  69,  §  5  ;  Respiib- 
Statc  magistrate  is  punishable  in  the  State  lica  v.  Newell,  3  Yeates,  407  ;  The  State  v. 
Courts,  f/iurre.  See  The  People  ;;.  Sweet-  Steele,  1  Ycrg.  394 ;  The  State  v.  John- 
man,  3  Parker,  C.  R.  358  ;  Rump  v.  Com-  son,  7  Blackf.  49. 
monwealtli,  30  Penn.  475.]  ^  Rex  v.   Lewis,    1    Stra.    70;    Report 

■^  Ibid. ;    5  Mod.  348 ;    Crew  v.  Vernon,  Comm'rs  Ma.^.s.  on  Crim.  Law,  tit.  Per- 

Cro.  Car.  97,  99;    Poultncy  i>.  Wilkinson,  jury,  §  13.     The  State  v.  Wall,  9  Ycrg. 

Cro.  El.  907.  347,  was  the  case  of  a  Juror,  examined  as 

'  Shaw  V.  Thompson,  Cro.  El.  609 ;    1  to  his  competency. 

Hawk.  1'.  C.  ch.  69,  §  3.  »  See  ante,  Vol.  1.  §§  83,  92 ;  The  State 

*  2    Holi.    Abr.   257,   Perjury,  pi.  2  ;    1  v.  Hascall,  6  N.  Hamp.  352  ;  The  State  v. 

Hawk.  ul).  siii>iii;   5  Mod.  348";    The  Peo-  Gregory,  2  Murphy,  69;    Rex  v.  Vcrelst, 

pie  r.  Phcli)s,  5  Wend.  10.  3  C.ampb.  432;    Rex  v.  Howard,  1  M.  & 

6  Reginac.  Hughes,  1  C.  &  K.  519;    1  Rob.  187. 


PART  v.]  PERJURY.  163 

devolving  on  the  prisoner  the  burden  of  showing  the  contrary. 
But  this  rule  is  applicable  only  to  public  functionaries  ;  and, 
therefore,  where  the  authority  to  administer  the  oath  was  derived 
from  a  special  commission  for  that  purpose,  as  in  the  case  of  a 
commission  out  of  Chancery,  to  take  testimony  in  a  particular 
cause,  or  where  it  is  delegated  to  be  exercised  only  under  particu- 
lar circumstances,  as  in  the  case  of  commissioners  in  bankruptcy, 
whose  power  depends  on  the  fact  that  an  act  of  bankruptcy  has 
been  committed,  or  the  like  ;  the  commission,  in  the  one  case,  or 
the  existence  of  the  essential  circumstances,  in  the  other,  must  be 
distinctly  proved.^ 

§  191.  The  competency  of  the  witness  to  testify,  or  the  fact  that 
he  was  not  hound  to  answer  the  question  propounded  to  him,  or  the 
erroneousness  of  the  judgment  founded  upou  his  testimony,  are  of 
no  importance  ;  it  is  sufficient,  if  it  be  shown  that  he  was  admit- 
ted as  a  witness,  and  did  testify.^  But  if  he  were  improperly  ad- 
mitted as  a  witness,  in  order  to  give  jurisdiction  to  the  Court,  it 
being  a  Court  of  special  and  limited  jurisdiction,  his  false  swearing 
is  not  perjury.^ 

§  192.  2dly.  1\\  proof  of  the  oath  taJcen,  under  the  usual  allega- 
tion that  "  he  was  sworn  and  examined  as  a  witness,"  or,  "  sworn 
and  took  his  corporal  oath,"  it  will  be  sufficient  to  give  evidence 
that  it  was  in  fact  taken  in  some  one  of  the  modes  usually  prac- 
tised.^ But  if  it  be  alleged  that  it  was  taken  on  the  gospels,  and 
the  proof  be  that  it  was  taken  with  an  uplifted  hand,  the  variance 
will  be  fatal ;  for  the  mode  in  such  case  is  made  essentially  de- 
scriptive of  the  oath.^  So,  it  is  conceived,  it  would  be,  if  the  alle- 
gation were  that  the  party  was  sworn,  and  the  proof  were  of  a 
solemn  affirmation  ;  or  the  contrary.  Nor  is  it  a  valid  objection, 
that  the  oath  was  irregularly  taken  ;  as,  for  example,  where  the 
witness  was  sworn  to  testify  the  whole  truth,  wlien  he  should  have 
been  sworn  only  to  make  true  answers.^  Where  the  oath  was 
made  to  an  answer  in    Chancery,  deposition,  affidavit,   or  other 

1  Rex    r.    Punshon,     3     Campb.     96.         ^  Smith  v.  Bouchier,    2  Stra.  993;    10 

[*  Semble,  that  taking  a  false  oatli  before  Johns.  167. 

a  com't-martial  is  perjury  at  common  law.         *  Rex    v.    Rowley,    Rv.   &   M.   302  ;    2 

Reg.  V.  Heane,  4  B.  &  S.  947.]  Chitty,  Crim.  Law,  309 ;'  Rex  v.  McCar- 

^  Montgomery  u.  The  State,  10  Ohio,  ther,  "l    Peake's  Cas.    155;    The   State  v. 

220 ;  Halev  ».  McPherson,  3  Humph.  104  ;  Norris,  9  N.  Hamp.  96. 
Sharp  V.  Wilhite,  2  Humph.  434;    1    Sid.  ^  See  ante.  Vol.   1,  §65;    The  State  v. 

274;  Shaffer  y.  Kintner,  1  Binn.  542 ;  Rex  Porter,  2  Hill  (S.  Car.),  611.      And  see 

V.  Dummer,  1  Salk.  374  ;  Van  Steenbergh  The  State  v.  Norris,  9  N.  Hamp.  96  ;  Rex 

V.  Kortz,  10  Johns.  167;  The  State  v.  Mo-  v.  McCarther,  1  Peake's  Cas.  155. 
lier,  1  Dev.  263.  e  The  State  v.  Keene,  26  Maine,  33. 


164  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PART  V 

written  paper,  signed  by  the  party,  the  original  document  should 
be  produced,  with  proof  of  his  handwriting,  and  of  that  of  the 
magistrate  before  whom  it  was  sworn  ;  which  will  be  sufficient  evi- 
dence of  the  oath  to  throw  on  the  prisoner  the  burdeu  of  proving 
that  he  was  personated  on  that  occasion  by  a  stranger.^  If  the  af- 
fidavit were  actually  used  by  the  prisoner  in  the  cause  in  which  it 
was  taken,  proof  of  this  fact  will  supersede  the  necessity  of  proving 
his  handwriting.^  Tlie  rule  in  these  cases  seems  to  be  this  :  that 
the  proof  must  be  sufficient  to  exclude  the  hypothesis  that  the  oath 
was  taken  by  any  other  person  than  the  prisoner.^  If  the  docu- 
ment appears  to  have  been  signed  by  the  prisoner  with  his  name, 
it  will  be  presumed  that  he  was  not  illiterate,  and  that  he  was  ac- 
quainted with  its  contents  ;  but  if  he  made  his  mark  only,  he  will 
be  presumed  illiterate  ;  in  which  case  some  evidence  must  be  of- 
fered to  show  that  it  was  read  to  him ;  and  for  this  purpose  the 
certificate  of  the  magistrate  or  officer,  in  the  jurat,  will  be  suffi- 
cient.* It  must  also  appear  that  the  oath  was  taken  in  the  county 
where  the  indictment  was  found  and  is  tried  ;  but  the  jurat,  though 
prinid  facie  evidence  of  the  place,  is  not  conclusive,  and  may  be 
contradicted.^ 

§  193.  3dly.  As  to  the  testimony  actually  given.  If  there  are 
several  distinct  assignments  of  perjury  upon  the  same  testimony 
in  one  indictment,  it  will  be  sufficient  if  any  one  of  them  be 
proved  ;  ^  and  proof  of  the  substance  is  sufficient,  provided  it  is  in 
substance  and  effect  the  whole  of  what  is  contained  in  the  assign- 
ment in  question.'^  Whether  it  is  necessary  to  prove  all  the  testi- 
mony which  the  prisoner  gave  at  the  time  specified,  is  a  point 
which  has  been  much  discussed,  the  affij:nnative  being  understood 

1  Rex  r.  Morris,  2  Burr.  1189  ;   Rex  v.  220,  S.  C.     It  was  Cartheio's  report  of  this 

Benson,  2  Campb.  508  ;    Crook  v.  Dowl-  case,  which  was  denied  by  Lord  Mansfield, 

inj,',  3  Doufr-   75  ;    Ewer  v.  Ambrose,  4  B.  in  Crook  v.  Dowling,  supra  :  it  not  apj)ear- 

&  C.  25  ;    Commonwealth  v.  Warden,  11  inj^  that  the  affidavit,  of  which  a  copy  only 

Met.  406;   Ante,  Vol.  1,  §  512.      Where  was  offered,  had  been  «set/ by  the  prisoner, 

perjury  was  assigned  upon  an  answer  in  And  see  Recs  v.  Bowen,  McCl.  &  Y.  383. 

Chancery,  to  a  bill  filled  by  A.  "  afrainst  ^  Rex  v.  Brady,   1   Leach,  C.  C.  (4th 

B.  and  another,"  and  it  appeared  that  in  ed.)  327  ;  Rex  v.  Price,  6  East,  323. 

fact  the  bill  was  a;;ainst  B.  and  senral  oth-  *  Rex  v.  Hailey,  1  C.  &  P.  258. 

ers ;   Lord  EUenborouf^h  held  it  nevcrthe-  ^  Rex  v.  Taylor,    Skin.    403 ;    Rex   v. 

less  sufficient,  and  no  variance  in  the  proof  Emden,  9  East,  437  ;  Rex  v.  Spencer,  1  C. 

upon  the  statute  of  23  Geo.  2,  ch.  1 1,  §  1,  &  P.  260.    [An  omission  in  an  indictment, 

which  only  recpiired  that  such  proccedin<TS  even  by  mistake  of  the  verb,  implying  that 

be  set  out  accorflinj;  to  their  substance  and  the  prisoner  testified,  is  fatal.      State  v. 

effect.     Rex  v.  Benson,  supra.     The  rule,  Leach,  27  Verm.  317.] 

it  is  conceived,  is  the  same  at  common  "^  The  State  r.  llascall,  6  N.  Hamp.  352; 

law.  [Commonwealth  v.  Johns,  6  Gray,  274.] 

-  Rex  r.  James,  1  Show.  897  ;    Carth.  '  Rex  v.  Lcefe,  2  Campb.  134. 


PART  v.]  PERJURY.  165 

to  have  been  ruled  several  times  by  Lord  Kenyon  ;  ^  but  it  will  be 
found,  on  examination  of  the  cases,  that  he  could  have  meant  no 
more  than  that  the  prosecutor  ought  to  prove  all  that  the  prisoner 
testified  respecting  the  fact  on  which  the  perjury  was  assigned.^  It 
is,  however,  conceived,  that  to  require  the  prosecutor  to  make  out 
a  prima  facie  case,  leaving  the  prisoner  to  show  that  in  another 
part  of  his  testimony  he  corrected  that  part  on  which  the  perjury 
is  assigned,  is  more  consonant  with  the  regular  course  of  proceed- 
ing in  other  cases,  where  matters,  in  excuse  or  explanation  of  an 
act  primd  facie  criminal,  are  required  to  be  shown  by  the  party 
charged.^ 

§  194.  In  proving  what  the  prisoner  orally  testified,  it  is  not 
necessary  that  it  be  proved  ipsissimis  verbis ;  nor  that  the  witness 
took  any  note  of  his  testimony ;  it  being  deemed  sufficient  to  prove 
substantially  what  he  said,  and  all  that  he  said  on  the  point  in 
hand.*  Neither  is  it  necessary  to  a  conviction  of  perjury,  to  prove 
that  the  testimony  was  given  in  an  absolute  and  direct  form  of 
statement ;  but,  under  proper  averments,  it  will  be  sufficient  to 
prove  that  the  prisoner  swore  falsely  as  to  his  impression,  best  rec- 
ollection, or  best  knowledge  and  belief.^  In  such  case,  however, 
it  will  be  not  only  necessary  to  prove  that  what  he  swore  was  un- 
true, but  also  to  allege  and  prove  that  he  knew  it  to  be  false  ;^  or, 
at  least,  that  he  swore  rashly  to  a  matter  which  he  had  no  proba- 
ble cause  for  believing.'^ 

§  195.  4thly.  As  to  the  materiality/  of  the  matter  to  which  the 
prisoner  testified,  it  must  appear  either  to  have  been  directly  per- 
tinent to  the  issue  or  point  in  question,  or  tending  to  increase  or 
diminish  the  damages,  or  to  induce  the  Jury  or  Judge  to  give 
readier  credit  to  the  substantial  part  of  the  evidence.^  But  the 
degree  of  materiality  is  of  no  importance ;  for  if  it  tends  to  prove 

1  Rex  V.  Jones,  1  Peake's  Cas.  37  ;  Rex  597  ;  Regina  v.  Schlesinger,  10  Q.  B.  670 ; 
V.  Dowlin,  Id.  170.  2  Cox,  C.  C.  200. 

2  See  ace.  Rex  v.  Rowley,  Ry.  &  M.  6  Regina  v.  Parker,  Car.  &  M.  639 ;  2 
299  ;    where  it  was   ruled   by  Littledale,  Chitty,  Crim.  Law,  312,  320. 

J.,  and  afterwards  confirmed  by  all  the  ^  Commonwealth  v.   Cornish,  6  Binn. 

Judges.  249. 

3  See  2  Russ.  on  Crimes,  658  ;  2  Chitty,  **  2  Russ.  on  Crimes,  600  ;  1  Hawk.  P. 
Crim.  Law,  312  6;  Ante,  Vol.  1,  §  79  ;  Rex  C.  oh.  69,  §  8 ;  Rex  v.  Aylett,  1  T.  R.  63, 
v.  Carr,  1  Sid.  418.  69;    Commonwealth  v.  Parker,   2  Cush. 

*  Rex  V.   Munton,  3   C.   &  P.   498;    2  212;    Commonwealth  ».  Knight,  12  Mass. 

Russ.  on  Crimes,  658.  273  ;    Rex  v.  Prendergast,  Jebb,  C.  C.  64. 

5  Miller's  case,  3  Wils.  420,  427 ;   Pat-  In  a  late  case,  Erie,  J.,  said,  he  thought 

rick  V.  Smoke,  3  Strobh.  147  ;  Rex  v.  Ped-  the  law  ought  to  be,  that  whatever  is  sworn 

ley,  1  Leach,  C.  C.  (4th  ed.)  325;  2  Chit-  deliberately,  and  in  open  Court,  should  be 

ty,  Crim.  Law,  312;   2  Russ.  on  Crimes,  the  subject  of  perjury;  though  the  law,  as 


166  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

the  matter  in  hand,  it  is  enough,  though  it  be  but  circumstantial.^ 
Thus,  falsehood,  in  the  statement  of  collateral  matters,  not  of  sub- 
stance, such  as  the  day  in  an  action  of  trespass,  or  the  kind  of 
staff  with  which  an  assault  was  made,  or  the  color  of  his  clothes,  or 
the  like,  may  or  may  not  be  criminal,  according  as  they  may  tend 
to  give  weight  and  force  to  other  and  material  circumstances,  or 
to  give  additional  credit  to  the  testimony  of  the  witness  himself  or 
of  some  other  witness  in  the  cause.^  And  therefore  every  question 
upon  the  cross-examination  of  a  witness,  is  said  to  be  material.^ 
In  the  answer  to  a  bill  in  equity,  matters  not  responsive  to  the  bill 
may  be  material.'*  But  where  the  bill  prays  discovery  of  a  parol 
agreement,  which  is  void  by  the  statute  of  frauds,  and  which  is 
denied  in  the  answer,  this  distinction  has  been  taken ;  that  where 
the  statute  is  pleaded  or  expressly  claimed  as  a  bar,  the  denial  of 
the  fact  is  immaterial  and  therefore  no  perjury ;  but  that  where 
the  statute  is  not  set  up,  but  the  agreement  is  incidentally  charged, 
as,  for  example,  in  a  bill  for  relief,  the  fact  is  material,  and  perjury 
may  be  assigned  upon  the  denial.^ 

§  196.  As  it  is  the  act  of  false  swearing  that  constitutes  the 
crime,  and  not  the  injury  which  it  may  have  done  to  individuals, 
the  materiality  of  the  testimony  is  to  be  ascertained  by  reference 
to  the  time  ivTien  it  was  given,  the  perjury  being  then,  if  ever  com- 
mitted. If,  therefore,  an  affidavit  was  duly  sworn,  but  cannot  be 
read,  by  reason  of  some  irregularity  in  i\\(i  jurat,  or  for  some  other 

it  exists,  he  added,  is  undoubtedly  differ-  been  called  to  the   particular  day   upon 

cut.     Kegina  v.  Philpotts,  5   Cox,  C.  C.  which  the  transaction  was  alleged  to  have 

336.  taken  place.     Reg.  v.  Stolady,  1  F.  &  F. 

1  Rex  V.  Gricpe,  1  Ld.  Raym.  258  ;  Rex  518.] 

V.  Rhodes,  2  Ld.  Raym.  889,  800;    The  '^  The  State  v.  Strat,  1  Murphey,  124; 

State   V.    Hathaway,  2  N.  &  McC.   118;  Regina  v.  Overton,  2  Moody,  C.  C.  i63 ; 

Commonwealtli  r.  "PoUard,    12  Met.  225.  Car.  &  Marsh.  655  ;  Regina  e;.  Lavey,  3  C. 

See  Regina  v.  Worlev,  6  Cox,  C.  C.  .535;  &  K.  26. 

Regina  y.  Owen,  6  Cox,  C.  C.  105.  *  5  Mod.  348. 

2  I  Hawk.  P.  C.  ch.  69,  §  8 ;  2  Russ.  on  ^  Rcginn  v.  Yeatcs,  Car.  &  Marsh.  132; 
Crimes,  600 ;  Rex  v.  Styles,  Hetlev,  97  ;  Rex  v.  Bencseck,  2  Peake's  Cas.  93 ;  Rex 
Studdard  r.  Linville,  3  Hawks,  474;  The  i-.  Dunst(m,  Ry.  &  M.  109.  See  Common- 
State  V.  Norris,  9  N.  Hamp.  96.  False  wealth  v.  Parker,  2  Cush.  225.  The  fnrts 
evidence,  whereby,  on  the  trial  of  a  cause,  being  proved,  the  question,  whether  they 
the  Judge  is  induced  to  admit  other  mate-  are  material  or  not,  is  a  question  of  htio. 
rial  evidence,  is  indictable  as  perjury,  even  Steinman  v.  Mc  Williams,  6  Barr.  170. 
though  the  latter  evidence  be  afterwards  [It  seems  that  the  materiality  of  the  mat- 
withdrawn  by  counsel.  Regina  v.  Phil-  tcr  assigned  is  a  question  for  the  Jury, 
potts,  3  C.  &  K.  i;55;  5  Cox,  C.  C.  329 ;  Regina  >.  Lavey,  3  C.  &  K.  26.  And 
2  Denison,  C.  C.  ■''.02 ;  8  Eng.  Law  &  Eq.  when  a  Jiarty  is  indicted  for  perjury  in 
R.  580.  [*  It  is  not  a  sufficiently  precise  giving  testimony  on  the  trial  of  an  issue 
allegation  upon  which  to  found  an  indict-  in  Court,  j)roof  that  his  testimony  was  ad- 
ment  for  perjury,  that  the  prisoner  swore  mitted  on  that  trial  is  not  sufficient  to 
that  a  certain  event  diil  not  happen  within  warrant  a  Jury,  on  the  trial  of  the  iiulict- 
two  fixed  dates,  his  attention  not  having  ment,  to  infer  that   such   testimony  was 


PART  v.]  PERJURY.  167 

cause  is  not  used ;  ^  or  if  after  the  testimony  was  given,  some 
amendment  of  the  issue,  or  other  change  in  the  proceedings,  takes 
phice,  by  means  of  which  the  testimony,  which  was  material  when 
it  was  given,  has  become  immaterial ;  ^  proof  of  its  materiality  at 
tlie  time  is  still  sufficient  to  support  this  part  of  the  charge.  Nor 
is  it  necessary  to  show  that  any  credit  was  given  to  the  testimony ; 
it  is  enough  to  prove  that  it  was  in  fact  given  by  the  prisoner.^ 

§  197.  Where  the  proof  of  materiality  is  found  in  the  records 
of  the  Court,  or  in  the  documents  necessary  to  show  the  nature  of 
the  proceedings  in  which  the  oath  was  taken,  this  fact  will  appear 
in  the  course  of  proving  the  proceedings,  as  has  already  been 
shown.  But  where  the  perjury  is  assigned  in  the  evidence  given 
in  the  cause,  it  will  be  necessary,  not  only  to  produce  the  record, 
but  to  give  evidence  of  so  much  of  the  state  of  the  cause,  and  its 
precise  posture  at  the  time  of  the  prisoner's  testifying,  as  will  show 
the  materiality  of  his  testimony.  The  indictment  does  not  neces- 
sarily state  how  it  became  material,  but  only  charges,  generally, 
that  it  was  so.* 

§  198.  5thly.  As  to  the  wilful  falsity  of  the  matter  testified. 
It  was  formerly  held,  that  two  witnesses  were  indispensable,  in 
order  to  a  conviction  for  perjury ;  as  otherwise  there  would  be 
only  oath  against  oath ;  but  this  rule  has  been  with  good  reason 
relaxed  ;  and  a  conviction,  as  has  been  fully  shown  in  a  preceding 
volume,  may  be  had  upon  any  legal  evidence  of  a  nature  and 
amount  sufficient  to  outweigh  that  upon  which  perjury  is  assigned. 
This  point  having  been  fully  treated  in  the  place  referred  to,  it  is 
superfluous  here  to  pursue  it  further.^  It  may,  however,  be  added 
here,  that  it  is  only  in  proof  of  the  falsity  of  what  was  testified, 

material  to  the  issue.     Commonwealth  v.  Regina  v.  Wheatland,  8  C.  &  P.  238 ;  Re- 
Pollard,    12   Met.   22.5.]      [*  See  Reg.  v.  gina  v.  Champney,  2  Lewin,  C.  C.  258; 
Goddard,  2  F.  &  F.  361.]  Regina  v.  Hughes,   1  C.  &  K.  519.     It  is 
1  Regina  v.  Hailey,  1  C.  &  P.  258  ;  Rex  also  to  be  noted,  that  declarations  in  artic- 
V.  Crossley,  7  T.  U.  315.     And  see  The  ulo  mortis  are  not  admissible,  even  as  cor- 
State  V.  Lavalley,  9  Miss.  834.  roborative  or  adminicular  evidence,  except 
^  Bullock  u.  itoon,  4  Wend.  531.  in  cases  of  homicide.     See  ante,   Vol.   1, 
3  I  Hawk.  P.  C.  ch.  69,  §  9  ;  2  Russ.  on  §  156.     [*  It  is  not  necessary  that  the  evi- 
Crimes,  603.  dence  adduced  to  corroborate  the  first  wit- 
*  The  State  v.  Mumford,  1  Dev'.  519.  ness  to  an  assignment  of  perjury,  should 
6  Ante,  Vol.  1,  §§  257-260.     [*  Reg.  v.  amount  to  a  direct  contradiction  of  the 
Braithwaite,  8   Cox,  C.   C.  254. J     Com-  statement  made    by   the    prisoner,   upon 
monwealth  v.  Parker,  2  Cush.  212;    The  which  the  perjury   is  assigned.     Reg.   v. 
United   States  v.  Wood,  14  Peters,  430;  Towey,  8  Cox,  C.  C.  328.     Memorandum 
1   Leading  Crim.  Cases,  482 ;    Regina  v.  made   by  witness,  at  date  of  transaction 
Boulter,  3  C.  &  K.  236  ;  5  Cox,  C.  C.  543  ;  sufficient  corroboration  of  witness.     Reg. 

1  Leading  Crim.  Cases,  494 ;  16  Jur.  135 ;  v.  Webster,  1  F.  &  F.  515.] 

2  Russ.  on  Crimes,  649  -  654.     And  see 


168  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PAET  V. 

that  more  evidence  than  that  of  a  single  witness  is  required ;  one 
witness  alone  being  sufficient  to  prove  all  the  other  allegations  in 
the  indictment.^ 

§  199.  In  proof  that  the  testimony  was  wilfully  false,  evidence 
may  be  given,  showing  animosity  and  malice  in  the  defendant 
against  the  prosecutor  ;  ^  or,  that  he  had  sinister  and  corrupt 
motives  in  the  testimony  which  was  falsely  given.  Thus,  where 
perjury  was  assigned  upon  a  complaint  made  by  the  defendant  of 
threats  on  the  part  of  the  prosecutor  to  do  him  some  great  bodily 
harm,  thereupon  requiring  sureties  of  the  peace  against  him  ;  evi- 
dence was  held  admissible,  showing  that  the  real  object  of  the  de- 
fendant, in  making  that  complaint,  was  to  coerce  the  prosecutor  to 
pay  a  disputed  demand  .^  And  if  the  false  testimony  given  in  a 
cause  were  afterwards  retracted,  in  a  cross-examination,  or  a  sub- 
sequent stage  of  the  trial ;  yet  the  indictment  will  be  supported  by 
proof  that  the  false  testimony  was  wilfully  and  corruptly  given, 
notwithstanding  the  subsequent  retraction.*  But  it  must  be  clearly 
shown  to  have  been  wilfully  and  corruptly  given,  without  any  in- 
tention, at  the  time,  to  retract  it ;  for  it  is  settled,  that  a  general 
answer  may  be  subsequently  explained,  so  as  to  avoid  the  imputa- 
tion of  perjury.  Thus,  where  perjury  was  assigned  upon  an  an- 
swer in  Chancery,  in  which  the  defendant  stated  that  she  had 
received  no  money;  and  it  was  proved,  that,  upon  exceptions 
being  taken  to  this  answer,  she  had  put  in  a  second  answer,  ex- 
plaining the  generality  of  the  first,  and  stating  that  she  had  re- 
ceived no  money  before  such  a  day ;  it  was  held,  upon  a  trial  at 
bar,  that  nothing  in  the  first  answer  could  be  assigned  as  perjury, 
which  was  explained  in  the  second.^ 

§  200.  The  allegation  that  the  oath  was  wilfully  and  corruptly 
falsc^  may  also  be  supported  by  evidence,  that  the  prisoner  swore 
rashly  to  a  matter  which  he  never  saw  nor  knew  ;  as,  where  he  swore 

1  Commonwealth  v.   Pollard,    12   Met.  v.  Aylott,  1  T.  R.  63.     Whether,  if  a  wit- 

225  ;  Rex  v.  Lee,  2  Russ.  on  Crimes,  650 ;  ness  swears  to  that  which  he  believes  to  be 

The  State  v.  Hayward,  1  N.  &  McC.  .546.  false,  but  which  is  in  fact  true,  he  can  be 

It  seems  that   fierjury    may  be    assij^ncd  convicted   of   perjury,    (jncere ;   and    sec  3 

upon  a  statement  literally  true,  but  dcsi-ii-  Inst.  166  ;  Bract,  lib.  4,  fol.  289. 

edly  used  to  convey  a  false  mcanini^,  and  '^  Rex  )'.  Munton,  3  C.  &  P.  498. 

actually  understood  in  such  false  sense;  ^  The  State  i-.  Ilascall.  6  N.  liamp.  352. 

the  rule  being,   that,  "if  the  words  are  *  Martin  r.  Miller,  4  Mis.  47. 

false  in  the  only  sense  in  which  they  relate  ^  Rex  r.  Carr,  1  Sid.  418  ;    2  Keb.  576, 

to  the  subject  in  dispute,  it  is  sufficient  to  2  Russ.  on  Crimes,  666.     The  same  ;;cn- 

convict   of    perjury;     thou<;h    in    another  eral  principle  is  recognized  in  Rex  r.  Junes, 

sense,  foreign  to  tiic  issue,  they  might  bo  1    Peake's   Cas.   38  ;    Rex  r.  Dowlin,  Id. 

true."     1  Gilb.  Ev.  by  Lotlt,  p.  661  ;  Rex  170;  Rex  v.  Rowley,  Ry.  &  M.  299. 


PART  v.]  PERJURY.  169 

positively  to  the  value  of  goods,  of  which  he  knew  nothing,  though 
his  valuation  was  correct ;  ^  or,  where  he  swore  falsely  to  a  matter, 
the  truth  of  which,  though  he  believed,  yet,  lie  had  no  prohaUe 
cause  for  helieving^  and  might  with  little  trouble  have  ascertained 
the  fact.  Thus,  where  the  prisoner,  having  been  shot  in  the  night 
in  a  riot,  made  complaint  on  oath  before  a  magistrate  against  a 
particular  individual,  as  having  shot  him ;  and  two  days  after- 
wards testified  to  the  same  fact  upon  the  examination  of  the  same 
person  upon  that  charge  ;  upon  which  oath  perjuiy  was  assigned  ; 
and  upon  clear  proof  that  this  person  was  at  that  time  at  a  place 
twenty  miles  distant  from  the  scene,  the  alibi  was  conceded,  and 
the  prisoner's  defence  was  placed  upon  the  ground  of  honest  mis- 
take of  the  person ;  the  Jury  were  instructed  that  they  ought  to 
acquit  the  prisoner,  if  he  had  any  reasonable  cause  for  mistaking 
the  person ;  but  that  if  it  were  a  rash  and  presumptuous  oath, 
taken  without  any  probable  foundation,  they  ought  to  find  him 
guilty,  though  he  might  not  have  been  certain  that  the  individual 
charged  was  not  the  person  who  shot  him.  And  this  instruction 
was  held  right.^ 

§  201.  In  DEFENCE  against  an  indictment  for  perjury,  it  may  be 
shown,  that  the  oath  was  given  before  a  Court  or  a  Magistrate 
having  no  Jwisdictmi  in  the  cause  or  matter  in  question ;  as,  for 
example,  that  the  oath  was  given  before  a  Judge,  out  of  the  limits 
of  the  State  in  which  he  was  commissioned ;  ^  or,  in  a  suit  previ- 
ously abated  by  the  death  of  the  party  ;  *  or  the  like.^  It  may  also 
be  shown,  that  the  testimony  was  given  by  surprise,  or  inadver- 
tency, or  under  a  mere  mistake,  for  which  the  witness  was  not  culp- 
able, and  in  respect  of  which  he  ought  to  be  charitably  judged ;  ^ 
or,  that  it  was  in  a  point  not  material  to  the  issue  ;  '^  or  that  it  was 
true.  But  if  there  be  several  assignments  of  perjury  in  the  same 
indictment,  and  as  to  one  of  them  no  evidence  is  given  by  the 

1  3  Inst.  1 66 ;    [The  People  v.  McKin-  ander,  4  Hawks,  1 82 ;    The  State  v.  Hay- 

ney,  3  Parker,  C.  R.  510.]  ward,  1  N.  &  McC.  .546  ;    Commonwealth 

-  Commonwealth  v.   Cornish,  6  Binn.  v.  White,  8  Pick.  453 ;    The  State  v.  Fur- 

249.     [But  a  ialse  swearing,  "  to  the  best  long,  26  Maine,  69 ;  Muir  v.  The  State,  8 

of  the  opinion  of  the  witness,"  to  a  state-  Blackf.    154;   Lambden>  v.   The  State,  5 

ment  which  is  not  true  and  which  the  wit-  Humph.  83. 

ness  has  no  reasonable  cause  to  believe  to  ^  Rex  v.  Melling,  5  Mod.  348,  350 ;  Re- 
be  true,  but  which  he  does  believe  to  be  gina  v.  Muscot,  10  Mod.  193  ;  2  McNally's 
true,  is  not  perjury.  Commonwealth  v.  Ev.  635.  In  Rex  v.  Crespigny,  1  Esp.  R. 
Brady,  5  Gray,  78.]  280,  the  mistake  was  in  regard  to  the  legal 

^  Jackson  v.  Humphrey,  1  Johns.  498.  import  of  a  deed.     See  ace.  The  State  v. 

*  Rex  ;;.  Cohen,  1  Stark.  R.  511.  Woolverton,  8  Blackf.  452. 

s  Paine's   case,   Yelv.    Ill;    Boling  v.  "  The  State  r.  Hathawav,  2  N.  &  McC. 

Luther,  2  Taylor,  202 ;  The  State  v.  Alex-  118;  Hinch  v.  The  State,  2  Mis.  158. 


170  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PAET  V. 

prosecutor,  no  evidence  will  be  admitted,  on  the  part  of  the 
defendant,  to  prove  that  in  fact  the  matter,  charged  in  the  as- 
signment to  be  false,  was  in  reality  true.^ 

§  202.  In  regard  to  the  competency  of  the  party  injured,  as  a 
witness  to  prove  the  perjury,  it  was  formerly  the  course  to  exclude 
him,  where  it  appeared  that  the  result  of  the  trial  might  probably 
be  to  his  advantage  in  ulterior  proceedings  elsewhere.  Thus, 
where  he  expected  that  the  defendant  would  be  the  only  witness, 
or  a  material  witness  against  him  in  a  subsequent  trial  ;2  or, 
where,  by  the  ordinary  course  in  Chancery,  he  might,  upon  the 
conviction  of  the  defendant,  obtain  an  injunction  of  further  pro- 
ceedings at  law,3  he  has  been  rejected  as  incompetent.  But  the 
modern  rule  places  the  prosecutor  in  the  same  position  as  any 
other  witness,  rejecting  him  only  where  he  has  a  direct,  certain, 
and  immediate  iyiterest  in  the  record,  or  is  otherwise  disqualified, 
on  some  of  the  grounds  stated  in  a  preceding  volume.*  But 
where  the  defendant  is  a  material  witness  against  the  prosecutor, 
in  a  cause  still  pending,  the  Court  will  in  their  discretion  sus- 
pend the  trial  of  the  indictment  until  after  the  trial  of  the  civil 
action. 

1  Rex  V.  Hemp,  5  C.  &  P.  468.  *  See  ante,  Vol.  1,  §§  387,  389,  390,  403, 

2  Eex  V.  Dalby,  1  Peake,  E.  12;  Rex  404,  407,  411-413.  And  sec  The  State  v. 
V.  Hulme,  7  C.  &  P.  8.  Bishop,  1  D.  Chipm.  120  (Vt.) ;  The  State 

8  Rex  V.  Eden,  1  Esp.  R.  97.  v.  Pray,  14  N.  Hamp.  464. 


PART  v.]  POLYGAMY.  171 


POLYGAMY. 

[*  §  203.    Originally  of  ecclesiastical  cognizance. 

204.  Proving  first  and  second  marriages,  and  that  former  husband  or  wife  was 

alive  at  second  marriage  sufficient. 

205.  Second  marriage  must  be  proved  to  have  been  legal,  save  that  first  husband 

or  wife  was  then  alive. 

206.  Person  with  whom  second  marriage  was  had,  competent  witness  to  prove  it. 

207.  First  husband  or  wife  must  be  proved  to  be  living  at  time  of  second  mar- 

riage. 

208.  Defences.] 

§  203.  This  offence  consists  in  having  a  iJlurality  of  wives  at  the 
same  time.  It  is  often  termed  Ugamy ;  which,  in  its  proper  sig- 
nification, only  means  having  had  two  wives  in  succession.  It 
was  originally  considered  as  of  ecclesiastical  cognizance ;  but 
the  benefit  of  clergy  was  taken  away  from  it  by  the  statute 
De  Bigamis ;  ^  and  afterwards  it  was  expressly  made  a  capital 
felony  .2 

§  204.  The  indictment  states  the  first  and  second  marriages,  and 
alleges  that  at  the  time  of  the  second  marriage,  the  former  hus- 
band or  wife  was  alive.  The  proof  of  these  three  facts,  therefore, 
will  make  out  the  case  on  the  part  of  the  prosecution.  In  regard 
to  the  first  viarriage,  it  is  sufficient  to  prove  that  a  marriage  in  fact 
was  celebrated  according  to  the  laws  of  the  country  in  which  it 
took  place ;  and  this,  even  though  it  were  voidable ;  provided  it 
were  not  absolutely  void.^  This  may  be  shown  by  the  evidence  of 
persons  present  at  the  marriage,  with  proof  of  the  official  charac- 
ter of  the  celebrator  ;  or,  by  documents  legally  admissible,  such  as 
a  copy  of  the  Register,  where  registration  is  required  by  law,  with 
proof  of  the  identity  of  the  person ;  or,  by  the  deliberate  admission 
of  the  prisoner  himself.* 

1  4  Edw.  1,  ch.  5.  ch.  17,  where  the  e\'idence  of  marriage  is 

2  1  Jac.  1,'  ch.  11,  §  1 ;    1  East,  P.  C.     more  fully  treated. 

464.  *  See  ante.   Vol.   1,.  §§  339,  484,  493; 

^' Ante,  Vol.  2,  tit.  Marriage,  §  461.     Vol.  2,  §  461  ;    Truman's  case,  1  East,  P. 

And  see  Bishop  on  Marriage  and  Divorce,     C.  470;  The  State  v.  Ham,  11  Maine,  391 ; 


172  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PAET  V. 

■  §  205.  Ill  proof  of  the  second  marriage,  the  same  kind  of  evi- 
dence is  admissible  as  in  proof  of  the  first.  But  it  must  distinctly 
appear,  that  it  was  a  marriage  in  all  respects  legal,  except  that  the 
first  husband  or  wife  was  then  alive  ;  that  it  was  celebrated  within 
the  county,  unless .  otherwise  provided  by  statute  ;  and  that  the 
jDcrson,  with  whom  the  second  marriage  was  had,  bore  the  name 
mentioned  in  the  indictment.-^  Proof  of  a  second  marriage  by  rep- 
iitation  alone,  is  not  sufficient.  The  description  of  the  person, 
too,  though  unnecessarily  stated  in  the  indictment,  must  be  strictly 
proved  as  alleged.  Thus,  where  the  person  was  styled  a  widow, 
but  it  appeared  in  evidence  that  she  was  in  fact  and  by  reputation 
a  single  woman,  the  variance  was  held  fatal.^ 

§  206.  If  the  first  marriage  is  clearly  proved,  and  not  contro- 
verted, then  the  person,  with  whom  the  second  marriage  was  had, 
may  be  admitted  as  a  witness  to  prove  the  second  marriage,  as  well 
as  other  facts,  not  tending  to  defeat  the  first,  or  to  legalize  the 
second.  Thus,  it  is  conceived,  she  would  not  be  admitted  to  prove 
a  fact,  showing  that  the  first  marriage  was  void,  such  as  relation- 
ship within  the  degrees,  or  the  like ;  nor  that  the  first  wife  was 
dead,  at  the  time  of  the  second  marriage ;  nor  ought  she  to  be  ad- 
mitted at  all,  if  the  first  marriage  is  still  a  point  in  controversy.^ 

§  207.  There  must  also  be  proof  that  the  first  husband  or  wife 
was  living  at  the  time  of  the  second  marriage.  And  for  this  purpose 
it  is  said  that  the  mere  presumption  of  the  continuance  of  life  is 
not  sufficient,  without  the  aid  of  other  circumstances,  though 
seven  years  have  not  expired  since  the  last  intelligence  was  had 
in  regard  to  the  absent  person.* 

§  208.   The  defence  may  be  made  by  disproving  either  of  the 

Woolvcrton  v.  The  State,  16  Ohio,  173;  given:  and  one  of  the  parties  to  the  cere- 
[Hcgina  z>.  Manwaring,  37  Enp.  Law  &  mony  speaks  of  it  as  a  valid  and  real  mar- 
Eq.  R.  609.  But  the  first  marriage  eannot  riage,  and  refers  to  the  certificate  in  sup- 
he  jjrovcd  by  the  confessions  of  the  defend-  port  of  his  dechiration,  and  he  is  subse- 
ant,  tiiough  supported  hy  proof  of  cohah-  quently  indicted  and  tried  for  bigamy  on 
itation,  and  re])Utation.  Gahagan  v.  The  account  of  such  marriage  ccremonj',  his 
l\'0i)ic,  1  Parker,  C.  R.  378.  And  when  declarations  in  reference  to  it  are  iidmissi- 
the  first  marriage  was  contracted  abroad,  ble,  both  as  evidence  of  identity  and  of  the 
the  prosecution  must  prove  its  validity  by  marriage ;  and  for  the  former  purpose  the 
the  foreign  law.  People  v.  Lambert,  5  marriage  certificate  itself  would  be  admis- 
Mich.  409.]  [*  Evidence  that  the  ])erson  sible  in  connection  with  his  declarations 
by  whom  a  marriage  ceremony  was  per-  respecting  it.  State  y.  Abbey,  29  Vt.  60.] 
formed  was  reputed  to  be,  and  that  he  ^  Drake's  case,  1  Lewin,  C.  C.  2.5. 
acted  as  a  magistrate  or  minister,  is  admis-  '^  Rex  r..  Dceley,  1  Moody,  C.  C.  303; 
sible,  and  is  suthcicnt  prima  facie  proof  of  4  C.  &  P.  .579  ;  Ante,  Vol.  1,  §  65. 
his  official  or  ministerial  character.  And  *  Sec  nn/e,  Vol.  1,  §  339;  1  Hale,  P.  C. 
where  a  marriage  ceremony  is  performed  693 ;  1  East,  P.  C.  469 ;  1  Russ.  on 
by  a  person  purjiorting  to  be  a  minister,  Crimes,  218. 
and  by  whom   a   marriage   certificate   is  *  Rex  v.  Twyning,  2  B.  &  Aid.  386. 


PART  v.]  POLYGAMY.  173 

points  above  stcated.  Thus,  where  a  woman  married  a  second 
husband  abroad,  in  the  lifetime  of  the  first ;  and  afterwards  the 
first  died ;  and  then  she  married  a  third  in  England,  in  the  life- 
time of  the  second,  and  for  this  third  marriage  she  was  indicted ; 
upon  proof  that  the  first  husband  was  living  when  the  second  mar- 
riage was  had,  it  was  held  a  good  defence  to  the  indictment,  the 
second  marriage  being  a  nullity,  and  the  third  therefore  valid.^ 
But  the  prior  marriage  must  be  shown  to  be  absolutely  void ;  for 
if  it  were  only  voidable  and  not  avoided  previous  to  the  second 
marriage,  it  is  no  defence.^  The  defence  may  also  be  made,  by 
showing  that  that  prisoner's  case  comes  within  any  of  the  excep- 
tions found  in  the  statutes,  which  the  several  States  have  enacted 
on  this  subject ;  such  as,  absence  of  the  former  partner  for  more 
than  seven  years,  unheard  of;^  previous  divorce  a  vmmZo  matri- 
monii; or  the  like. 

1  Lady  Madison's  case,  1  Hale,  P.  C.     marriage,  but  that  she  had  the  means  of 
693.  acquiring  knowledge  of  that  fact,  had  she 

2  3  Inst.  88.  chosen  to  make  use  of  them,  it  was  held 
8  [Under  the  English  statute,  where  a     that  a  conviction  could  not  be  sustained. 

husband  has  been  absent  more  than  seven  Regina  v.  Briggs,   1  Dears.  &  Bell,  98.] 

years,  and  the  Jury  find  that  there  is  no  [*  And  the  onus  of  proving  the  absence  of 

evidence  that  the  wife  knew  that  the  bus-  such  knowledge  rests  on  the  prosecution, 

band  was  alive,  at  the  time  of  her  second  Reg.  v.  Curgerwen,  11  Jur.  N.  S.  984.1 


171  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 


RAPE. 

[*  §  209.  Rape  defined. 

210.  Proof  of  penetration  sufficient. 

21 1.  Circumstances  proving^orce  and  absence  of  previous  consent. 

212.  Defence  consists  in  controverting  evidence  of  the  fact  or  of  the  force. 

213.  Particular  facts  stated  by  prosecutrix  in  making  complaint  not  admissible. 

214.  Character  of  prosecutrix  for  chastity  must  be  impeached  by  general  evidence. 

215.  That  prisoner  was  under  fourteen  years  of  age  at  the  time,  a  defence.] 

§  209.  This  offence  is  defined  to  be  the  unlawful  carnal  knowl- 
edge of  a  woman,  hy  force  and  against  her  will}  These  facts  are 
the  principal  allegations  in  the  indictment. 

§  210.  In  the  proof  of  cartial  knoivledge,  it  was  formerly  held, 
though  with  considerable  conflict  of  opinion,  that  there  must  be 
evidence  both  of  penetration  and  of  injection.  But  the  doubts  on 
this  subject  were  put  at  rest  in  England,  by  the  statute  of  9  Geo. 
4,  c.  31,  which  enacted  that  the  former  of  the  two  facts  was  suffi- 
cient to  constitute  the  offence.  Statutes  to  the  same  effect  have 
been  passed  in  some  of  the  United  States.^  But  as  the  essence  of 
the  crime  consists  in  the  violence  done  to  the  person  of  the  suffer- 
er, and  to  her  sense  of  honor  and  virtue,  these  statutes  are  to  be 
regarded  merely  as  declaratory  of  the  common  law,  as  it  has  been 
held  by  the  most  eminent  Judges  and  Jurists  both  in  England  and 
this  country.^ 

1  1  East,  P.  C.  434.     And  see  2  Inst,  statutes  he  would  be  liable  in  such  case  to 

180,  181  ;   3  Inst.  60;   4  Bl.  Comm.  210;  be  presented  in  the  same  manner  as  the 

1  Russ.  on  Crimes,   675.      [*  In  Reg.  v.  principal  felon,  he  may  be  so  charged  in 

Fletcher,  5  Jur.  N.  S.  179,  it  was  held  that  the  indictment."     Bigelow,  C.  J.     Com- 

rape  was  the  ravishing  a  woman  without  monwealth  v.  Forgcrty,  8  Gray,  489.     But 

her  consent,  and  it  was  said  by  Willes,  J.,  under   an   indictment   for  rape,  in  which 

that  in  a  case  tried  before  him  of  a  rape  there  is  no  averment  that   the  person   of 

upon  an  idiot   girl,  he  directed  the  Jury  whom   the    defendant  had    carnal   knowl- 

that,  if  they  were  satisfied  that  the  girl  was  edge  was  not  his  wife,  a  conviction  for  for- 

in  such  a  i^tatc  of  idiotcy  as  to  be  incapa-  nication   cannot  be  sustained.     Common- 

ble  of  expressing  either  consent  or  dissetit,  wealth  r.  Miiri)hy,  2  Allen,  163.    In  every 

and  that  the  prisoner  had  connection  with  written   legal   accusation   of  the  crime  of 

her  without  her  consent,  it  was  their  duty  ra])e  it  must  be  laid  as  a  felony.     Mears  v. 

to  find  him  guilty;  but  he  also  told  them  Commonwealth,  2  Grant's  Cases,  385.J 

that  a  consent  produced  by  mere  animal  -  See  i\V«'   York;  Rev.  Stat.  Vol.  2,  p. 

instinct  would  be  suttieient  to  prevent  tlie  820,  §  18;  Mirhlgan,  Rev.  Stat.  1846,  eh. 

act  from  constituting  a  rajje.  —  An  indict-  153,  §  20  ;    Iowa,  Code  of  1851,  art.  2997  ; 

ment  for  rape  need  not  av(!r  that  the  wo-  Arkansas,  Rev.  Stat.  1837,  ch.  45,  §  163. 

man  ravished  was  not  the  wife  of  the  de-  ^  3  Inst.  59,  60;    1^  Hale,  P.  C  628;    1 

fendant,  "  beeau.se  a  man  inav  be  ])rineipal  East,  P.  C.  436,  437;    Re.K  r.  Russeti,  1 

in  the  second  degree  in  the  eoiniuission  of  East,  P.  C.  438;    Rex  v.  Sheridan,  Ibid.  ; 

that  crime  on  his  wife;  and  as  under  our  1  Russ.  on  Crimes,  678;    Commonwealth 


PART  v.]  RAPE.  175 

§211.  The  allegation  of  force  and  the  absence  of  previous  con- 
sent is  proved  by  any  competent  evidence,  showing  that  either  the 
person  of  the  woman  was  violated,  and  her  resistance  overcome 
by  physical  force,  or  that  her  will  was  overcome  by  the  fear 
of  death  or  by  duress.  In  either  case  the  crime  is  complete, 
though  she  ceased  all  resistance  before  the  act  itself  was  final- 
ly consummated.  And  if  she  was  taken  at  first  with  her  own 
consent,  but  was  afterwards  forced,  against  her  will  ;  or  was  first 
violated,  and  afterwards  forgave  the  ravisher  and  consented  to  the 
act ;  or  if  she  was  his  concubine,  or  a  common  strumpet ;  still  the 
particular  offence  in  question  being  committed  by  force  and  against 
her  will  at  the  time  of  its  commission,  this  crime  is  in  legal  esti- 
mation completed  ;  these  circumstances  being  only  admissible  in 
evidence  on  the  part  of  the  defendant,  to  disprove  the  allegation 
of  the  want  of  consent.^  So,  if  the  prisoner  rendered  the  woman 
intoxicated  or  stupefied  with  liquor,  or  chloroform,  or  other  means, 
in  order  to  have  connection  with  her  in  that  state,  which  purpose 
he  accomplished,  he  maybe  convicted  of  this  crime. ^  If  the  fe- 
male was  of  tender  age,  the  law  conclusively  presumes  that  she  did 
not  consent ;  and  this  age,  being  not  precisely  determined  in  the 
common  law,  was  settled,  by  the  statute  of  18  Eliz.  c.  7,  at  ten 
years. 2    If  the  act  were  perpetrated  upon  a  married  woman,  by 

V.  Thomas,  Virg.  Cas.  307  ;  Pennsylvania  that  state ;  and  Tindal,  C.  J.,  and  Parke, 
V.  Sullivan,  Addison,  143  ;  The  State  v.  B.,  remarked,  that  in  a  stat.  of  Westmin- 
Leblanc,  Const.  Rep.  354.  As  to  what  ster  2,  ch.  34,  the  offence  of  rape  is  de- 
constitutes  penetration,  see  Kegina  v.  scribed  to  be  ravishing  a  woman  'where 
Lines,  1  C.  &  P.  393 ;  Regina  v.  Stanton,  she  did  not  consent,'  and  not  ravishino- 
Id.  415;  Regina  v.  Hughes,  9  C.  &  P.  against  her  will.  But  all  the  ten  Judge's 
752;  Regina  w.  Jordan,  Id.  118;  Regina  agreed,  that  in  this  case,  where  the  prose- 
V.  McRue,  8  C.  &  P.  641.  cutrix  was  made  insensible  by  the  act  of 

1  1  Russ.  on  Crimes,  677  ;  1  East,  P.  C.  the  prisoner,  and  that  an  unlawful  act,  and 
444,  445  ;  Wright  v.  The  State,  4  Humph,  when  also  the  prisoner  must  have  known 
194.  that  the  act  was  against  her  consent  at  the 

2  Regina  v.  Champlin,  1  C.  &  K.  746  ;  last  moment  that  she  was  capable  of  exer- 
1  Denison,  C.  C.  89.  In  this  case,  the  cising  her  will,  because  he  had  attempted 
prosecutrix  was  made  insensible  by  liquor  to  procure  her  consent  and  failed,  the  of- 
administered  to  her  by  the  prisoner,  for  fence  of  rape  was  committed."  The  three 
the  purpose  of  exciting  desire,  and  whilst  dissenting  Judges  appear  to  have  thought 
she  was  in  that  Qondition  he  had  connec-  that  this  could  not  be  considered  as  sufE- 
tion  with  her.     A  majority  of  the  Judges  ciently  proved. 

held  that  he  was  guilty  of  rape.     In  the  ^  4  gj    Comm.  212;   1  Hale,  P.  C.  631  ; 

Addenda  to  1  Denison,  C.  C.  1,  there  is  1  East,  P.  C.  436;  Hays  v.  The  People,  l 

the  following  note  of  the  reasons  for  this  Hill  (N.  Y.),  351.     [*  See  Smith  v.  State, 

decision,  supplied  by  Parke,  B. :  "Of  the  12  Ohio  (N.  S-),  466,  where  the  question 

Judges  who  were  in  favor  of  the  convic-  is  discussed  and  the  authority  of  Hays  v. 

tion,  several   thought  that  the  crime  of  The  People,  doubted.]     [If  a  Jury  tinds 

rape  is  committed  by  violating  a  woman  that  the  prosecutrix,  a  girl  between  ten 

■when  she  is  in  a  state  of  insensibility  and  and  twelve  years  of  age,  was  a  consenting 

has  no  power  over  her  will,  whether  such  party  to  indecent  liberties  taken  by   the 

state  is  caused  by  the  man  or  not,  the  ac-  prisoner,  he  cannot  be  convicted  of  an  as- 

cused  knowing,  at  that  time,  that  she  is  in  sault.     7  Cox,  645.] 


176  LAW   OF  EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

fraudulently  and  successfully  personating  her  husband,  and  com- 
ing to  her  bed  in  the  night,  it  is  not  a  rape,  but  an  assault.^ 

§  212.  The  defence  against  this  charge  generally  consists  in  con- 
troverting the  evidence  of  the  fact  or  of  the  force  adduced  on  the 
part  of  the  prosecution.  It  is  to  be  remembered,  as  has  been  just- 
ly observed  by  Lord  Hale,  that  it  is  an  accusation  easily  made,  hard 
to  be  proved,  and  still  harder  to  be  defended  by  one  ever  so  inno- 
cent.^ The  party  injured  is  legally  competent  as  a  witness,  but 
her  credibility  must  be  left  to  the  Jury,  upon  the  circumstances 
of  the  case  which  concur  with  her  testimony  ;  as,  for  example, 
whether  she  is  a  person  of  good  fame  ;  whether  she  made  com- 
plaint of  the  injury  as  soon  as  was  practicable,  or  without  any  in- 
consistent delay  ;  whether  her  person  or  garments  bore  token  of 
the  injury  done  to  her  ;  whether  the  place  was  remote  from  passen- 
gers, or  secure  from  interruption  ;  and  whether  the  oifender  fled  ; 
or  the  like.  On  the  other  hand,  if  she  be  of  ill  fame,  and  stands 
unsupported  by  other  evidence  ;  or  if  she  concealed  the  injury  for 
any  considerable  time  after  she  had  opportunity  to  complain ;  or 
if  the  act  were  done  in  a  place  where  other  persons  might  have 
heard  her  cries,  but  she  uttered  none  ;  or  if  she  gave  wrong  de- 
scriptions of  the  place,  or  the  place  was  such  as  to  render  the  per- 
petration of  the  offence  there  improbable  ;  these  circumstances, 
and  the  like,  will  proportionably  diminish  the  credit  to  be  given  to 
her  testimony  by  the  Jury,^ 

§  213.  Though  the  prosecutrix  may  be  asked  whether  she  made 
comjylaint  of  the  injury,  and  when  and  to  whom ;  and  the  person 
to  whom  she  complained  is  usually  called  to  prove  that  fact ;  yet 
the  particular  facts  which  she  stated  are  not  admissible  in  evidence, 

1  Regina  v.  Saunders,  8  C.  &  P.  265;  544;    Temple  &  Mew,  C.  C.  318;   4  Cox, 

Regina  y.  Williams,  Id.  286  ;  Rex  v.  Jack-  C.  C.  220  ;  Ante,  §  59. 

son,  Russ.  &  Ry.  C.  C.  486 ;    1  Leading  2  i   Hale,  P.   C.  635.      [*  In   State  v. 

Crim.   Cases,  2.34;    Regina  v.   Clarke,  6  Lattin,  29  Conn.  389,  where  the  defendant 

Cox,  C.  C.  512;    1  Leading  Crim.  Cases,  had  been  convicted  of  the  crime  of  car- 

232 ;    29  Eng.  Law  &  Eq.    R.   542.      A  nally  knowing  and  abusing  a  female  child 

medical  i)ractitioner  had  sexual  connection  under  the  age  of  ten  years,  upon  the  un- 

with  a  young  girl  of  the  age  of  fourteen,  corroborated  testimony  of  the  child  her- 

who   had   for   some  time   l)ccn   receiving  self,  who  was  nine  years  of  age,  it  was 

medical   treatment  from   him.     The  Jury  hehl  on  the  motion  of  the  defendant  for  a 

found  that  she  was  ignorant  of  the  nature  new  trial  for   a  verdict  against  evidence, 

of  the  defendant's  act,  and  nnxde  no  resist-  that  it  was  not  necessary,  to  warrant  the 

anee,  solely  from  a  bona  fide  belief,  that  conviction,,  that  the  testimony  of  the  child 

the  defendant  was  (as  he  represented)  treat-  should  have  been  confirmed  by  an  exami- 

ing  her  medically,  with  a  view  to  her  cure,  nation  of  her  person  at  the  time,  or  by 

It  was  held  that  he  was  guilty  of  an  as-  medical  testimony.] 

sault,   and  it  seems   that  he   might   have  •'  1  Hale,  P.  C".  633  ;  1  I'^ast,  P.  C.  445 ; 

been  indicted  for  rape.     Regina  v.  Case,  1  1  Russ.  on  Crimes,  688,  689. 
Denison,  C.  C.  580 ;  1  Eng.  Law  «&.  Eq.  R. 


PAET  v.] 


RAPE. 


177 


except  when  elicited  in  cross-examination,  or  by  way  of  confirming 
her  testimony  after  it  has  been  impeached.  On  the  direct  exami- 
nation, the  practice  has  been  merely  to  ask  whether  she  made 
complaint  that  such  an  outrage  had  been  perpetrated  upon  her, 
and  to  receive  only  a  simple  yes  or  no.^  Indeed,  the  complaint 
constitutes  no  part  of  the  res  gestce  ;  it  is  only  a  fact  corroborative 
of  the  testimony  of  the  complainant ;  and  where  she  is  not  a  wit- 
ness in  the  case,  it  is  wholly  inadmissible.^ 

§  214.  The  character  of  the  •prosecutrix  for  chastity,  may  also  be 
impeached  ;  but  this  must  be  done  by  general  evidence  of  her  rep 
utation  in  that  respect,  and  not  by  evidence  of  particular  instances 
of  unchastity.^  Nor  can  she  be  interrogated  as  to  a  criminal  con- 
nection with  any  other  person,  except  as  to  her  previous  inter- 
course with  the  prisoner  himself ;  nor  is  such  evidence  of  other 
instances  admissible.^ 

§  215.  It  may  also  be  shown,  in  defence,  that  the  prisoner  was 
at  the  time  under  the  age  of  fourteen  years  ;  prior  to  which  age  the 
law  presumes  that  he  was  incapable  of  committing  this  offence  ; 
and  this  presumption  is  by  the  common  law  conclusive.^      Under 


1  Eegina  v.  Walker,  2  M.  &  Rob.  212  ; 
Regina  v.  Megson,  9  C.  &  P.  420;  The 
People  V.  McGee,  1  Denio,  19;  Phillips  v. 
The  State,  9  Humph.  246 ;  Rex  v.  Clarke, 
2  Stark.  R.  241  ;  1  Russ.  on  Crimes,  689, 
690,  and  note  by  Greaves ;  [Brogg  v.  The 
Commonwealth,  10  Grattan,  722.] 

2  Regina  v.  Guttridge,  9  C.  &  P.  471 ; 
Regina  v.  Nicholas,  2  C.  &  K.  246 ;  The 
People  V.  McGee,  1  Denio,  19.  [*  But 
see  State  v.  Peter,  14  La.  An.  521.  And  the 
declarations  of  the  prosecutrix  when  in 
travail  as  to  the  paternity  of  the  child,  are 
not  admissible,  especially  if  she  be  a  wit- 
ness. State  V.  Hussey,  7  Clarke  (Towa), 
409.]  [The  prosecutrix  may  be  asked  by 
the  government,  whether  the  acts  were 
done  with  her  consent  or  against  her  will. 
Woodin  V.  The  People,  1  barker,  C.  R. 
464.]  [*  In  Reg.  v.  Eyre,  2  F.  &  F.  579, 
it  was  held  that  not  only  what  the  prose- 
cutrix said  immediately  after  the  occasion, 
but  what  was  said  in  answer  to  her,  is  evi- 
dence. —  On  an  indictment  for  rape  on 
a  child  under  ten,  evidence  was  admitted 
of  subsequent  perpetrations  of  the  same 
offence  on  different  days  previously  to 
complaint  to  the  mother,  it  appearing  that 
the  prisoner  had  thi-eatened  the  child  on 
the  first  occasion.  Held  that,  virtually,  in 
such  a  case  it  was  all  one  continuous 
offence.     Reg.  v.  Rearden,  4  F.  &  F.  76.] 

3  Rex  V.  Clarke,  2  Stark.  R.  241 ;   Rex 
VOL.  III.  12 


V.  Barker,  3  C.  &  P.  589  ;  Regina  v.  Clay, 
5  Cox,  C.  C.  146.  And  see  ante.  Vol.  1, 
§  54 ;  The  State  v.  Jefferson,  6  Ired.  305  ; 
The  People  v.  Abbott,  19  Wend.  192; 
Camp  V.  The  State,  4  Kelly,  417. 

*  Rex  V.  Hodgson,  Russ.  &  Ry.  C.  C. 
2 1 1  ;  1  Leading  Crim.  Cases,  228 ;  Rex  v. 
Aspinwall,  2  Stark.  Evid.  700 ;  [*  Mc- 
Combs  V.  State,  8  Ohio  (N.  S.),  643.] 
The  soundness  of  this  distinction  was 
questioned  by  Williams,  J.,  in  Rex  v.  IVIar- 
tin,  6  C.  &  P.  562 ;  and  in  Neiv  York  and 
North  Girolina  evidence  of  previous  inter- 
course with  other  persons,  has  been  held 
admissible,  as  tending  to  disprove  the  alle- 
gation of  force.  See  The  People  v.  ^h- 
bott,  and  The  State  v.  Jefferson,  supra  ; 
Regina  v.  Robins,  2  M.  &  Rob.  512  ;  [The 
People  V.  Jackson,  3  Parker,  C.  R.  391  ; 
State  V.  Johnson,  2  Wms.  ( Vt.),  512.] 

5  1  Hale,  P.  C.  6.30;  4  Bl.  Comm.  212; 
Rex  V.  Eldershaw,  2  C.  &  P.  396  ;  Rex  v. 
Groombridge,  7  C.  &  P.  582 ;  Regina  v. 
Phillips,  8  C.  &  P.  736  ;  Regina  v.  Jordan, 
9  G.  &  P.  118;  Commonwealth  v.  Green, 
2  Pick.  380.  But  in  Ohio,  this  presump- 
tion has  been  held  rebuttable  by  proof  that 
the  prisoner  had  arrived  at  puberty.  Wil- 
liams V.  The  State,  14  Ohio,  222.  And 
see  Commonwealth  v.  Lanigan,  2  Law 
Rep.  49.  [People  v.  Randolph,  2  Parker, 
C.  R.  194.]  In  C'ali/onna,  it  is  enacted 
that  "  An  infant,  under  the  age  of  fourteen 


LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 


[part  V, 


this  age,  therefore,  it  is  held  that  he  cannot  be  convicted  of  a  felo- 
nious assault  with  intent  to  conimit  this  crime. 


years,  shall  not  be  found  guilty  of  any 
crime."     Rev.  Stat.  1850,  eh.  99,  §  4. 

1  1  Russ.  on  Crimes,  676  ;  Rex  v.  Elder- 
sliaw,  3  C.  &  P.  396  ;  Rex  v.  Groombridge, 
7  C.  &  P.  582  ;  Regina  v.  Phillips,  8  C.  & 
P.  736  ;  The  State  v.  Handy,  4  Harringt. 
556.  But  in  Commonwealth  v.  Green,  2 
Pick.  380,  it  was  held  by  the  learned 
Judges  (Parker,  C.  J.,  dissenting),  that  a 
boy,  under  the  age  of  fourteen  years, 
might  be  lawfully  convicted  of  an  assault 
Avith  intent  to  commit  a  rape ;  on  the 
ground  that,  if  near  that  age,  he  might  be 
capable  of  that  kind  of  force  which  consti- 
tutes an  essential  ingredient  in  the  crime ; 
and  that  females  might  be  in  as  much  dan- 
ger from  precocious  boys  as  from  men. 
And  see  WLlliaras  v.  The  State,  supra. 


Idea  qucere.  If  the  crime  is  consummated 
by  penetration  alone,  of  which  a  boy  under 
fourteen  may  be  physically  capable,  and 
yet  is  in  law  conclusively  presumed  inca- 
pable, how  can  he  be  found  guilty  of  an 
attempt  to  commit  a  crime,  which,  in  con- 
templation of  law,  is  impossible  to  be  com- 
mitted, or  can  have  no  existence  ?  In 
England,  this  question  is  supposed  to  be 
put  at  rest  by  the  Stat.  1  Vict.  ch.  85, 
§  11,  which  enacts  that  "on  the  trial  of 
any  person,  for  any  felony  ichatever,  where 
the  crime  charged  shall  include  assault,  the 
Jury  may  acquit  of  the  felony,  and  find 
the  party  guilty  of  an  assault,  if  the  evi- 
dence shall  warrant  such  finding."  See 
Regina  v.  Brimilow,  9  C.  &  P.  366. 


PART  v.]  RIOTS,  ROUTS,  AND   UNLAWFUL   ASSEMBLIES.  179 


RIOTS,    ROUTS,    AND    UNLAWFUL 
ASSEMBLIES. 

[*§  216.   Riots,  routs,  and  unlawful  assemblies  defined. 

217.  Three  persons  at  least  must  have  been  engaged  to  make  a  riot. 

218.  Unlawful  assembling  must  be  proved. 

219.  Proof  of  deed  of  violence  dispenses  with  proof  of  terror. 

220.  Object  of  rioters  must  be  proved  to  have  been  of  a  private  nature. 

221.  Order  of  proof  same  as  in  prosecutions  for  conspiracy. 

222.  Eout  and  unlawful  assembly  how  proved.] 

§  216.  To  constitute  either  of  these  offences,  it  is  necessary 
that  there  be  three  or  more  persons  tumultiiously  assembled  of 
their  own  authority,  with  intent  mutually  to  assist  one  another 
against  all  who  shall  oppose  them  in  the  doing  either  of  an  un- 
lawful act  of  a  private  nature,  or  of  a  lawful  act  in  a  violent  and 
tumultuous  manner.  If  the  act  is  done,  in  whole  or  in  part,  it  is 
a  RIOT.  If  no  act  is  done,  but  some  advance  towards  it  is  made, 
such  as  proceeding  towards  the  place,  or  the  like,  it  is  a  rout.  If 
they  part  without  doing  it  or  making  any  motion  towards  it,  the 
offence  is  merely  that  of  an  unlawful  assembly.^ 

1  4B1.  Comm.  146;  1  Hawk.  P.  C.  ch.  that,  "When  three  or  more  persons  to- 

65,  §  1  ;    1  Russ.  on  Crimes,  266,  272 ;   3  gether,  and   in  a  violent  or  tumultuous 

Inst.  176;   The  State  ».  Cole,  2  McCord,  manner,  commit  an  unlawful  act,  or  to- 

117  ;  The  State  v.  Brooks,  1  Hill  (S.  Car.),  gether  do  a  lawful  act  in  an  unlawful,  vio- 

361;  Pcnnsylvaniay.  Craig,  Addison,  190;  lent,  or  tumultuous  manner,  to  the  terror 

The  States.  Snow,  18  Maine,  346;    The  or  disturbance   of  others,   they   shall  be 

State  V.   Connolly,  3  Rich.  337 ;   Rex  v.  deemed  guilty  of  a  riot."     Rev.  Stats,  ch. 

Birt,  5  C.  &  P.  154.     In  an  indictment  for  159,  §  3.     It  is  defined  in  the  same  words, 

that  species  of  riots  which  consists  in  going  in  the  Code  of  Iowa,  Art.  2740.     In  Mis- 

about  armed,  &c.,  without  committing  any  souri,  it  is  declared  to  be  a  riot,  "If  three 

act,  the  words  in  terrorem  populi  are  neces-  or  more  persons  shall  assemble  together 

sary,  the  terror  to  the  public  being  of  the  with  the  intent,  or  being  assembled,  shall 

essence  of  that  otfence ;   but  in  those  riots  agree  mutually  to  assist  one  another  to  do 

in  which  an  unlawful  act  is  committed,  any  unlawful  act,  with  force  or  violence, 

these  words  are  useless.     Regina  v.  Soley,  against  the  person  or  property  of  another, 

11  Mod.  116,  per  Ld.  Holt;   10  Mass.  520  ;  or  against  the  peace,  or  to  the  terror  of 

Rex  V.  Hughes.  4  C.  &  P.  373.     To  dis-  the  people,  and  shall  accomplish  the  pur- 

turb  another  in  the  enjoyment  of  a  lawful  pose  intended,  or  do  any  unlawful  act  in 

right,  if  it  be  openly  done  by  numbers  un-  furtherance  of  such  purpose,  in  a  violent 

lawfully  combined,  is   a  riot.     Common-  or  turbulent  manner,"  &c.     See  Missouri, 

■wealth   V.   Runnels,    10   Mass.    518.      In  Rev.  Stats.  1845,  ch.  47,  art.  7,  §  6.     The 

some  of  the  United  States,  a  riot  is  defined  Commissioners  for  revising  the  Penal  Code 

by  statute.     Thus,  in  Alaiyie,  it  is  enacted  of  Massachusetts,  expressed  their  view  of 


180  LAW   OF  EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

§  217.  In  support  of  the  indictment  for  a  riot,  it  must  be  proved, 
that  at  least  three  persons  were  engaged  in  the  unlawful  act ;  and 
if  the  evidence  extends  only  to  one  or  two  persons,  all  the  defend- 
ants must  be  acquitted  of  this  particular  charge,  though  the  act 
proved  against  one  or  two  might  amount  to  an  assault,  or  some 
other  offence.^ 

§  218.  There  must  also  be  evidence  of  an  unlawful  assembling; 
but  it  is  not  necessary  to  prove  that  when  the  parties  first  met 
they  came  together  unlawfully  ;  for  if,  being  lawfully  together,  a 
dispute  arises,  and  thereupon  they  form  into  parties,  with  promises 
of  mutual  assistance,  and  then  make  an  affray,  the  assemblage, 
originally  lawful,  will  be  converted  into  a  riot.  Nor  is  it  neces- 
sary to  show  that  every  defendant  was  present  at  the  original  as- 
semblage ;  for  a  person  joining  others  already  engaged  in  a  riot,  is 
equally  guilty  as  if  he  had  joined  them  at  tlie  beginning.^  So,  if 
persons  being  lawfully  assernbled,  should  afterwards  confederate 
to  do  an  unlawful  act,  and  proceed  to  execute  it  by  doing  an  act 
of  violence  in  a  tumultuous  manner,  it  is  a  riot.^ 

§  219.  If  the  indictment  charges  the  actual  perpetration  of  a 
deed  of  violence,  such  as  an  assault  and  battery,  or  the  pulling 
down  of  a  house,  it  is  not  necessary  to  allege  or  prove  that  it  was 
done  to  the  terror  and  disturbance  of  the  people  ;  but  proof  of  all  the 
other  circumstances  alleged,  will  support  the  indictment  without 
proving  distinctly  any  terror.  But  where  the  offence  consists  in 
tumultuously  disturbing  the  peace  by  show  of  arms,  threatening 
speeches,  turbulent  gestures,  or  the  like,  without  the  perpetration 
of  any  deed  of  violence,  it  is  necessary  to  allege  and  prove  that 
such  conduct  was  to  the  disturbance  and  terror  of  the  good  citi- 
zens of  the  State.*  Yet  there  may  be  a  show  of  arms  and  a 
numerous  assemblage,  without  a  riot.     Thus,  if  a  man  should  as- 

this   offence,    at    common   law,    in    these  otliers.     Commonwealth  v.  Berrj,  5  Gray, 

terms:    "A  riot  is  where  three  or  more,  93.] 

heini^  in  unlawful  assemhly,  join  in  doinc;  ^  j  Hawk.  P.  C.  ch.  fi."),  §  .3 ;  Hex  v. 

or  actually  hei^inning  to  do  an  act,  with  Tloycc,  4  Burr.  207"?:   Anon.  6  Mod.  43; 

tumult  and  violence  not  authorized  bylaw,  The  State  r.  Brazil,  Kice,  R.  2.58. 

and  striking  terror,  or  tendintr  to  strike  •''  The  State  v.  Snow,  18  Maine,  .346. 

terror,   into  others."      See   their  Report,  *  1  Hawk.  P.  0.  ch.  6.5,  §  .5;  Reufina  w. 

Jan..  1841,  ch.  34,  §  .5.  Solcy,   11    Mod.    115;    2   Salk.   .594,   .595; 

1  Rex   i:   Sudbury,  1    Ld.  Raym.  484;  Howard  >\  Bell,  Tloh.  91  ;  Comnionwealth 

Rex  V.  Scott,  3  Biirr.   1262;    Pcnnsylva-  v.    Runnells,    10   IMass.   518;    OlifTord    v. 

nia  V.  Huston,   Addison,  3.34 ;  The  State  Brandon,  2  Oamph.  358,  369  ;    The  State 

V.  Alli.son,  3  Ycrjr.  428.     [Rut  if  one  of  v.   Brazil,   Rice,    R.   258 ;    The    State   v. 

three    indicted    for    a    riot  be  separately  Brooks,   1    Hill    fS.   Car.),   362;    Rex   v, 

tried,  he  may   be   convicted   on   proof  of  Hu<;hes,  4  O.  &  P.  373.     But  see  Rex  v 

a  riot  in  which   he  joined  witli  any  two  Cox,  Id.  538. 


PART  v.]  RIOTS,  ROUTS,  AND  UNLAWFUL  ASSEMBLIES.  181 

semble  his  friends  or  others,  and  arm  them  in  defence  of  his  house 
or  person  against  a  threatened  unlawful  and  violent  attack  ;  or 
should  employ  a  number  of  persons  with  spades  or  other  proper 
implements,  to  assist  him  in  peaceably  removing  a  nuisance,  and 
they  do  so  ;  it  is  neither  a  forcible  entry  nor  a  riot.  Nor  is  it  a 
riot  when  a  sheriif  or  constable,  or  perhaps  a  private  person, 
assembles  a  competent  number  of  men  forcibly  to  put  down  a 
rebellion,  to  resist  enemies,  or  to  suppress  a  riot.^ 

§  220.  It  must  also  be  shown  that  the  object  of  the  rioters  was 
of  a  private  nature,  in  contradistinction  from  those  which  concern 
the  whole  community,  such  as  the  redress  of  public  grievances,  or 
the  obstruction  of  the  Courts  of  Justice,  or  to  resist  the  execution 
of  a  public  statute  everywhere  and  at  all  hazards  ;  acts  of  this 
kind  being  treasonable.  Thus,  if  the  object  of  an  insurrection  or 
tumultuous  assemblage  be  supposed  to  affect  only  the  persons  as- 
sembled, or  be  confined  to  particular  persons  or  districts,  such  as 
to  destroy  a  particular  enclosure,  to  remove  a  local  nuisance,  to 
release  a  particular  prisoner,  or  the  like,  it  is  not  treason,  but  is  a 
riot.2  If  the  perpetration  of  an  unlawful  act  of  violence  be 
charged  as  the  riotous  act,  such  as  an  assault  and  battery,  it  must 
be  proved,  or  the  parties  must  be  acquitted  ;  and  if  the  offence  is 
alleged  to  consist  in  a  riotous  assemblage  and  conduct,  to  the  ter- 
ror of  the  citizens,  this  part  of  the  indictment  will  be  supported  by 
proof  that  one  person  only  was  terrified. ^ 

§  .221.  In  proving  the  guilt  of  the  defendants,  as  participators 
in  the  riot,  the  regular  and  proper  order  of  proceeding  is  similar  to 
that  which  is  adopted  in  prosecutions  for  conspiracy,  namely,  first 
to  prove  the  combination,  and  then  to  show  what  was  done  in  pur- 
suance of  the  unlawful  design.  But  this,  as  we  have  heretofore 
seen,  is  not  an  imperative  rule  ;  it  rests  in  the  discretion  of  the 
Judge  to  prescribe  the  order  of  proofs  in  each  particular  case  ; 
and  if  he  deems  it  expedient,  under  the  special  circumstances,  to 
permit  the  prosecutor  first  to  prove  the  riotous  acts,  it  will  be  only 
after  the  whole  case,  on  the  part  of  the  government,  has  been 
openly  stated,  and  the  prosecutor  has  undertaken  to  connect  the 
defendants  with  the  acts  done.^     But  it  will  be  sufficient  to  fix  the 

1  1  Hawk.  P.  C.  ch.  65,  §  2 ;  1  Hale,  P.         3  Regina  v.  Langford,  Car.  &  Marshm, 
C.  487,  495,  496  ;  1  Russ.  on  Crimes,  266.     602 ;    Regina  v.  Phillips,  2  Moody,  C.  C. 

2  1  Hawk.  P.  C.  ch.  65,  §  6 ;  1  East,  P.     252 ;  S.  C.  as  Regina  v.  Langford. 

C.  75  ;  Rex  v.  Birt,  5  C.  &  P.  154 ;  Doug-  *  See  supra,  tit.  Conspiracy-,  Aiite,  Vol. 
lass  V.  The  State,  6  Yerg.  525.  1,  §  51  a;  Id.  §  HI ;   Nicholson's  case,  1 


182  LAW   OF  EVIDENCE   IN  CRIMINAL   CASES.  [PART  V. 

guilt  of  any  defendant,  if  it  be  proved  that  he  joined  himself  to  the 
others  after  the  riot  began,  or  encouraged  them  by  words,  signs,  or 
gestures,  or  by  wearing  their  badge,  or  otherwise  took  part  in  their 
proceedings.^ 

§  222.  A  rout  is  proved  in  the  same  manner  as  a  riot,  the  proof 
only  showing  some  advance  made  towards  a  riotous  act,  but  stop- 
ping short  of  its  actual  perpetration.  And  an  unlawful  assembly  is 
proved  by  similar  evidence,  without  showing  any  motion  made  to- 
wards the  execution  of  a  riotous  act ;  or,  by  evidence  of  the  assem- 
blage of  great  numbers  of  persons,  with  such  circumstances  of 
terror,  as  cannot  but  endanger  the  public  peace,  and  raise  fears 
and  jealousies  among  the  people.^  All  who  join  such  an  assem- 
blage, disregarding  its  probable  effect,  and  the  alarm  and  conster- 
nation likely  to  ensue  ;  and  all  who  give  countenance  and  support 
to  it,  are  criminal  parties.^ 

Lewin,  C.  C.  300 ;  1  East,  P.  C.  96,  §  37  ;  on  Crimes,  272 ;   Rex  v.  Birt,  5  C.  &  P. 

Eedford  v.  Birlcy,  3  Stark.  R.  76.  154  ;  Kegina  v.  Neale,  9  C.  &  P.  431 ;  Re- 

1  1    Hale,  P.   C.  462,  463;    Clifford  v.  gina  v.  Vincent,  9  C.  &  P.  91,  per  Alder- 
Brandon,   2    Campb.   358,   370 ;    Rex  v.  son,  B. ;  Rex  v.  Hunt,  3  B.  &  Aid.  566. 
Royce,  4  Burr.  2073.  ^  Redford  v.  Birley,  3  Stark.  R.  76,  per 

'^  1  Hawk.  P.  C.  ch.  65,  §§  8,  9;  1  Russ.  Holroyd,  J. 


PAET  v.]  BOBBERY.  183 


ROBBERY. 

[*  §  223.  Eobbery  defined. 

224.  Property  of  person  named  as  owner  must  be  proved. 

225.  Actual  possession  of  goods  by  robber  must  be  proved. 

226.  May  be  a  talcing  in  law.     Illustrations. 

227.  Felonious  intent  must  be  proved. 

228.  Also  a  taking  from  the  person. 

229.  Force  may  be  actual  or  constructive. 

230.  Robbery  may  be  under  guise  of  legal  proceeding. 

231.  Proof  of  putting  in  fear  supports  allegation  of  force. 

232.  Menace  of  danger  to  the  person,  how  proved. 

233.  Fear  of  injury  to  one's  property  sufficient. 

234.  Also  of  injury  to  one's  reputation  sometimes. 

235.  But  money  must  be  parted  with  from  immediate  apprehension  of  present 

danger  upon  charge  being  made. 

236.  Dying  declarations  of  party  robbed  not  admissible.] 

§  223.  This  crime  has  been  variously  described  in  the  books  ; 
but  the  most  comprehensive  and  precise  definition,  is  that  which 
was  given  by  Lord  Mansfield,  who  "  was  of  opinion  that  the  true 
nature  and  original  definition  of  robbery  was,  a  felonious  taking  of 
'property  from  the  person  of  another  by  force. ^^  ^  The  personal  pos- 
session of  the  property  by  the  party  robbed,  he  proceeded  to  say, 
might  be  actual  or  constructive  ;  as,  if  it  be  in  his  presence  lying 
on  the  ground  ;  and  so  of  the  force  ;  it  might  be  physical  violence, 
directly  applied  ;  or  constructive,  by  threats,  or  otherwise  putting 
him  in  fear,  and  thereby  overcoming  his  will.  The  indictment 
charges  —  1st,  a  taking  of  the  goods  ;  —  2d,  that  they  were  taken 
with  Q.  felonious  intent ; —  3d,/rom  the  person  of  the  party  robbed  ; 
—  4th,  hj  force? 

1  Donally's  case,   2  East,   P.   C.  725.  calf,  J.    And  see  United  States  v.  Jones, 

Robbery,  by  the  common  law,  is  larceny  3  Wash.  219;   McDaniel  v.  The  State,  8 

from  the  person,   accompanied  with  vio-  S.  &  M.  401. 

lence,  or  by  putting  in  fear ;   and  an  in-         -  The  following  precedent  is  taken  from 

dictment  therefor  must  allege  that  the  tak-  Train  and  Heard's  Precedents  of  Indict- 

was  from  the  person,  and  that  it  was  ments,  461. 


by  violence  or  by  puttmg  m  fear,  m  addi-  „  r  j-  ^       ^  y-     td  n         ,  n            t     . 

^•^      ..    ,1                    ..    ^i_  ?                          •  Indictment  for  Kobbeni  at  Lommon  Law. 

tion  to  the  averments  that  are  necessary  m  ■^     ./  -  -"^  "  "^  .y 

indictments  for  other  larcenies.     Common-  "  The  Jurors,  etc.,  upon  their  oath  pre- 

wealth  V.  Clifford,  8  Cush.  216,  per  Met-  sent,  that  C.  D.,  late  of,  etc.,  on  the  first 


184  LAW   OF   E\1DENCE   DT   CRIMINAL   CASES.  [PART  V 

§  224.  The  goods  must  be  proved  to  be  the  property  of  the  per- 
son named  as  owner  in  the  indictment.  If  a  servant,  having  col- 
lected money  for  his  master,  is  robbed  of  it  on  his  way  home,  it 
has  been  thought  that  it  should  still  be  deemed  the  money  of  the 
servant,  until  it  lias  been  delivered  to  the  master  ;  or  otherwise  the 
servant  could  not  be  guilty  of  the  crime  of  embezzling  it.^  But 
the  value  is  immaterial ;  for  the  forcible  taking  of  a  mere  memo- 
randum, or  a  paper  not  equal  in  value  to  any  existing  coin,  is 
held  sufficient  to  constitute  this  crime. ^ 

§  225.  In  proof  of  the  takiiig,  it  is  necessary  to  show  that  the 
goods  were  actually  in  the  rohhers  j^ossession.  This  point  has  been 
illustrated  by  the  case  of  a  purse,  which  the  robber  in  a  struggle 
with  the  owner  cut  from  his  girdle,  whereby  the  purse  fell  to  the 
ground  without  coming  into  the  custody  of  the  robber  ;  which 
Lord  Coke  held  to  be  no  taking  ;  though,  if  he  had  picked  up  the 
purse  it  would  have  been  otherwise.^  So,  where  the  prisoner 
stopped  the  prosecutor,  and  commanded  him  to  lay  down  a  feather- 
bed which  he  was  carrying,  or  he  would  shoot  him,  and  the  prose- 
cutor did  so  ;  but  the  prisoner  was  apprehended  before  he  could 
take  it  up  so  as  to  remove  it  from  the  place  where  it  lay  ;  the 
Judges  were  of  opinion  that  the  offence  of  robbery  was  not  com- 
pleted.* But  where  a  diamond  ear-ring  was  snatched  by  tearing 
it  from  a  lady's  ear,  though  it  was  not  seen  actually  in  the  pris- 
oner's hand,  and  was  afterwards  found  among  the  curls  in  the 
lady's  hair  ;  yet  as  it  was  taken  from  her  person  by  violence,  and 
was  in  the  prisoner's  possession,  separate  from  her  person,  though 
but  for  a  moment,  the  Judges  held  that  the  crime  of  robbery  was 
completed.^  It  is  not,  however,  sufficient,  that  the  property  be 
snatched  away,  unless  it  be  done  with  some  injury  to  the  person,  as 
in  the  case  just  mentioned,  where  the  ear  was  torn,  or  unless 

day  of  June,  in  the  year  of  our  Lord ,  person  robbed,  or   of  some  third  person. 

with  force  and  arms,  at  B.,  in  the  county  Commonwealth  v.  Clifford,  8  Cusb.  215; 

of  S.,  in  and  upon  one  J.  N.,  feloniously  Hex  v.  Hall,  3  C.  &  P.  409;    Rex  v.  Ko- 

did  make  an  assault,  and  the  said  J.  N.,  in  gan,  Jebb,  C.  C.  621. 

bodily  fear  and  danger  of  his  life,  then  and  i  Regina  v.  Rudick,  8  C.  &  P.  237,  per 

there  feloniously  did    ])Ut,   and   one  gold  Alderson,  B. 

watch  of  the  viiluc  of  one  hundred  df)llars,  -  Rex  v.  Binglcy,   6   C.   &  P.   602;    2 

of  the  goods  and  chattels  of  tiic  said  J.  N.,  East,  P.  C.  707  ;  Regina  v.  Morris,  9  C.  & 

from  the  person  and  against  the  will  of  the  P.  347. 

said  J.  N.  then  and  there  feloniously  and  »  3  Inst.  69 ;  1  Hale,  P.  C.  533. 

violently  did  steal,  take,  and  carry  away ;  *  Rex  v    Farrel,   1   Leach,   C.  C.  (4th 

against  the  jjcace,  etc."  ed.),  322,  note. 

The  indictment  must  allege  that  the  ar-  ^  Rex  v.  Lapier,    1   Leach,  C.  C.   (4th 

tides  stolen  were  carried  away  by  the  rob-  ed.),  320;   Regina  v.  Simpson,  6  Cox,  C. 

ber,  and  that  they  are  the  property  of  the  C  422.                                                  ^ 


PART  v.]  ROBBERY.  185 

there  be  a  struggle  for  the  possession  and  some  violence  used  to  ob- 
tain it} 

§  226.  But  there  may  be  what  is  termed  a  taling  in  law,  as  well 
as  a  taking  in  fact,  examples  of  which  are  given  by  Lord  Hale. 
Thus,  if  thieves,  finding  but  little  about  the  man  whom  they  at- 
tempt to  rob,  compel  him  by  menace  of  death  to  swear  to  bring 
them  a  greater  sum,  and  under  influence  of  this  menace  he  brings 
it,  this  evidence  will  sustain  an  indictment  for  robbery,  in  the 
usual  form  of  allegation.^  And  it  is  the  same,  if  the  money  or 
goods  were  asked  for  as  a  loan,  but  still  obtained  by  assault  and 
putting  the  party  in  fear  ;  or  if,  in  fleeing  from  the  thief,  the 
party  drops  his  hat  or  purse,  which  the  thief  takes  up  and  carries 
away.^ 

§  227.  The  taking  must  also  be  proved  to  have  been  with  a  felo- 
nious intent ;  the  proof  of  which  has  already  been  considered,  in 
treating  of  the  crime  of  larceny.^ 

§  228.  The  goods  must  also  be  proved  to  have  been  taken  from 
the  person  of  the  party  robbed  ;  and  this  possession  by  the  party,  as 
we  have  seen,  may  be  either  actual  or  constructive.  This  allega- 
tion in  the  indictment,  therefore,  may  be  proved  by  evidence  that 
the  goods  were  in  the  presence  of  the  party  robbed  ;  as,  if  the  rob- 
ber having  first  assaulted  the  owner,  takes  away  his  horse  stand- 
ing near  him  ;  or,  having  put  him  in  fear,  drives  away  his  cattle  ; 
or  takes  up  his  purse,  which  the  owner,  to  save  it  from  the  robber, 
had  thrown  into  the  bush.^  And  it  is  sufficient,  if  it  be  proved 
that  the  taking  by  the  robber  was  actually  begun  in  the  presence 
of  the  party  robbed,  though  it  were  completed  in  his  absence. 

1  1  Russ.  on  Crimes,  pp.  871,  875,  The  English  Commissioners  (Fourth  Re- 
876.  port,  p.  (39,  a,  40,  n.)  were  of  opinion  that 

2  1  Hale,  P.  C.  532,  53-3  ;  2  East,  P.  C.  the  offence  was  robbery.  Mr.  East  deemed 
714.  it  a  question  for  the  Jury  to  find  the  intent, 

3  1  Hale,  P.  C.  533.  upon  the  consideration  of  all  the  circum- 
*  Supra,  §  156.     If  the  prisoner  know-     stances.     2  East,  P.  C.  661,   662.      The 

ingly  made  or  intended  to  make  an  inade-  Massachusetts  Commissioners  seem  to  have 

qmie  compensation  for  the  goods  forcibly  regarded  it  as  not  amounting  to  robbery, 

taken,  this  will  not  absolve  him  from  the  See  Report  on  the  Penal  Code  of  Massa- 

guilt  of  robberv;   for  the  intent  was  still  chusetts,  1844,  tit.  Robbery,  §  17.     [*  A 

fraudulent  and  felonious.     Rex  v.  Simons,  creditor    having    violently    assaulted   his 

2  East,  P.  C.  712;  Rex  v.  Spencer,  Ibid.;  debtor,  and  so  forced  him  to  give  him  a 

1  Russ.  on  Crimes,  p.  880.     But  whether,  check  in  part  payment,  and  having  then 

if  he  made,   or  intended   at  the  time  to  again  assaulted  him,  in  order  to  force  him 

make,  what  he  in  good  faith  deemed  a  suf-  to  give  him  money  in  payment  of  the  debt ; 

ficient  compensation  and  complete  indem-  Held,  that  as  there  was   no  felonious  in- 

nity   for   the    goods    forcibly    taken,   the  tent,  he  could  not  properly  be  convicted  of 

offence  amounts  to  robbery,"  or  is  only  a  robbery.     Reg.  v.  Hemmings,  4  F.  &  F. 

forced  sale  and  a  trespass,  is  a  point  upon  50.] 

which  there  is  some  diversity  of  opinion.  *  2  East,  P.  C.  707. 


186  LAW   OF  EVIDENCE  IN   CRIMINAL   CASES.  [PART  V. 

Thus,  where  a  wagoner  was  forcibly  stopped  in  the  highway  by  a 
man,  under  the  fraudulent  pretence  that  his  goods  were  unlawful- 
ly carried  for  want  of  a  permit,  and  while  they  were  gone  to  a  mag- 
istrate to  determine  the  matter,  the  man's  confederates  carried 
away  the  goods  ;  this  was  held  sufficient  proof  of  a  taking  to  con- 
stitute robbery .1  But  where  it  was  found  by  a  special  verdict,  that 
the  thieves,  meeting  the  party  wronged,  and  desiring  him  to  change 
half-a-crown,  gently  struck  his  hand,  whereby  his  money  fell  to  the 
ground  ;  and  that  he  dismounting  and  offering  to  take  up  the 
money,  they  compelled  him,  by  menaces  of  instant  death,  to  desist ; 
and  it  was  also  found,  "  that  the  said  prisoners  then  and  there  im- 
mediately took  up  the  money  and  rode  off  with  it "  ;  the  Court 
held  this  not  to  be  sufficient  proof  of  the  crime  of  rohhery,  it  not 
being  found  that  they  took  up  the  money  in  the  sight  or  presence 
of  the  owner.2 

§  229.  In  regard  to  the  force  or  violence  with  which  the  goods 
were  taken,  this  may  be  actual  or  constructive  ;  the  principle  being 
this,  that  the  power  of  the  owner  to  retain  the  possession  of  his 
goods  was  overcome  by  the  robber  ;  either  by  actual  violence  phys- 
ically applied,  or  by  putting  him  in  such  fear  as  to  overpower  his 
will.^  If  the  robbery  was  by  actual  violence,  the  proof  of  this  fact 
will  support  this  part  of  the  indictment,  though  it  should  appear 
that  the  party  did  not  know  that  his  goods  were  taken  ;  as,  if  he 
be  violently  pressed  against  a  wall  by  the  thief,  who,  in  that  mode, 
robs  him  of  his  watch,  without  his  knowledge  at  the  time.*     So,  if 

1  Merriman  v.  The  Hundred  of  Chip-  out  intermission,  in  a  little  space  of  time,  &c. 

penham,  2  East,  P.  C.  709 ;    1  Russ.  on  In  the  statute  27  Eliz.  it  is  directed  that 

Crimes,  876.  notice  be  given  as  soon  as  conveniently 

'^  Rex  V.  Frances,  2  Com.  R.  478.     In  may  be ;   in  the  pleadings  that  is  usually 

expounding  the  above  clause  in  the  special  expressed  by  immediate;   so  that  then  and 

verdict,  the  learned  Juilges  said  :    "  It  was  there  immediatehj  doth  not  necessarily  ascer- 

not  denied  but  that  if  a  thief  set  upon  a  tain  the  time,  ijut  leaves  it  doubtful.     Be- 

man  to  rob  him,  and  he  throw  away  his  sides,  it  is  proper  to  take  notice,  that  in 

money  or  his  goods  (biniig  near  him  and  this  verdict  the  words  then  and  there  imme- 

in  his  presence),  and  was  forced  away  by  diately  are  not  coupled  in  the  same  clause 

terror,  and  the  thief  took  them,  it  would  or  sentence  with  the  words  preceding ;  but 

be  robbery ;  and  therefore  here  possibly  it  it  is  a  distinct  clause  and  a  sej)arate  find- 

migbt   have   been   well    if  the  .Jury  had  ing."     Id.  pp.  480,  481.     And  see  2  Stra. 

found,  that  when  Cox  desisted,  the  prison-  1015,  S.  C. 

ers  at  the  same  time,  or  without  any  inter-  ^  jt  jg  not  necessary  to  allege  that  the 

mediate  space  of  time,  or  instantly,  took  it  party  robljcd  was  put  in  fear;  nor  is  it  ne- 

up ;    but  the  word    immediatelij   has  great  cessary  to  prove  that  he  was  intimidated, 

latitude,  and  is  not  of  any  determinate  sig-  if   the   robbery   was    by   actual   violence, 

nification  ;   it  is  in  dictionaries  explained  Commonwealth   r.    Humphries,    7   Mass. 

hy  cito,  ceJeriter :  in  writs  returnable /mme-  242;    Commonwealth  r.  Clifford,  8  Cush. 

diate  it  has  a  larger  construction,  as  soon  215,217. 

as  conveniently  it  can  be  done.     In  Maw-  ^  Commonwealth  v.   Snclling,  4  Binn. 

gridge's  case  it  is    twici;  mentioned,   but  .379. 
with  words  added  to  ascertain  it,  as  with- 


PAKT  v.]  ROBBERY.  187 

a  thing  be  feloniously  taken  from  the  person  of  another  with  such 
violence  as  to  occasion  a  substantial  corporal  injury,  as,  by  tearing 
the  ear,  in  plucking  away  an  ear-ring/  or  the  hair,  in  snatching 
out  an  ornament  from  the  head  ;  ^  or  if  it  be  obtained  by  a  violent 
struggle  with  the  possessor,  which  causes  a  sensible  concussion  of 
his  person,  provided  it  be  so  attached  to  the  person  or  clothes  as  to 
afford  resistance  ;  ^  as,  if  it  be  his  sword,  worn  at  his  side.*  But 
where  it  appeared  that  the  article  was  taken  without  any  sensible 
or  material  violence  to  the  person,  as,  for  example,  snatching  a  hat 
from  the  head,  or  a  cane  or  umbrella  from  the  hand  of  the  wearer, 
rather  by  sleight  of  hand  and  adroitness  than  by  open  violence, 
and  without  any  struggle  on  his  part ;  it  has  been  ruled  to  be  not 
robbery,  but  mere  larceny  from  the  person.^ 

§  230.  If  it  be  proved  that  there  was  a  felonious  intent  to  ob- 
tain the  goods,  and  that  violence  was  used,  but  that  this  was  done 
under  the  guise  of  legal  proceeding,  it  will  still  support  an  indict- 
ment for  robbery.^  And  if  the  violence  be  used  for  another  purpose, 
as  in  the  case  of  assault  with  intent  to  ravish,  and  money  being  of- 
fered to  the  criminal  to  induce  him  to  desist,  he  takes  the  money, 
but  persists  in  his  original  purpose,  it  is  robbery.'^ 

§  231.  Evidence  that  the  money  or  goods  were  obtained  from 
the  owner  by  putting  him  in  fear,  will  support  the  allegation  that 
they  were  taken  hy  force.  And  the  law,  in  odium  spoliator  is,  will 
presume  fear,  wherever  there  appears  a  just  ground  for  it.*'  The 
fear  may  be,  of  injury  to  the  person  ;  or,  to  the  property  ;  or,  to  the 
reputation ;  and  the  circumstances  must  be  such  as  to  indicate  a 
felonious  intention  on  the  part  of  the  prisoner.  The  fear,  also, 
must  be  shown  to  have  continued  upon  the  party,  up  to  the  time 
when  he  parted  with  his  goods  or  money  ;  but  it  is  not  necessary 
to  prove  any  toords  of  menace,  if  the  conduct  of  the  prisoner  were 
sufficient  without  them ;  as,  if  he  begged  alms  with  a  drawn  sword ; 

1  Rex  V.  Lapier,  1  Leach,  C.  C.  (4th  holding  his  watch  loosely  in  hoth  hands, 
ed.),  320;  2  East,  P.  C.  557,  708.  A.  caught  hold  of  the   ribbon  and   key 

2  Rex  V.  Moore,  1  Leach,  C.  C.  (4th  attached  to  the  watch,  and  snatched  it 
ed.),  335.  from  B.  and  made  off  with  it.     This  was 

3  Rex  V.  Mason,  Russ.  &  Ry.  C.  C.  419.  held  not  to  be  robbery,  but  a  larceny  from 
*  Rex  V.  Davies,  2  East,  P.  C.  709.  the  person.  Regina  v.  Walls,  2  C.  &  K. 
6  Rex  V.  Steward,  2  East,  P.  C.  702;     214. 

Regina  v.  Danby,   Ibid. ;   Rex  v.  Baker,  ^  See   Merriman    v.    The   Hundred  of 

Ibid. ;  1  Leach,  C.  C.  (4th  ed.),  290;  Rex  Chippenham,  2  East,  P.  C.  709;   Rex  v. 

V.  Horner,  2  East,  P.  C.  703  ;   The  State  Gascoigne,  Ibid. ;  1  Russ.  on  Crimes,  876, 

V.  Trexler,  2  Car.  Law  Repos.  90;  Rex  v.  877. 

Macauley,  1  Leach,  C.  C.  (4th  ed.),  287.  t  Rex  v.  Blackham,  2  East,  P.  C.  711; 

Thus,  where  A.  asked  B.  what  o'clock  it  1  Russ.  on  Crimes,  878. 

was,  and  B.  took  out  his  watch  to  tell  him,  ^  Foster,  Cr.  L.  128,  129. 


188  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

or,  by  similar  intimidation,  took  another's  goods  under  color  of  a 
purchase,  for  half  their  value,  or  the  like.'^  It  is  only  necessary  to 
prove  that  the  fact  was  attended  with  those  circumstances  of  vio- 
lence or  terror,  which,  in  common  experience,  are  likely  to  induce 
a  man  unwillingly  to  part  with  his  money  for  the  safety  of  his  per- 
son, property,  or  reputation. ^ 

§  232.  Menace  of  danger  to  the  person  may  be  proved  not  only 
by  direct  evidence  of  threats,  but  by  evidence  that  the  prisoner 
and  his  companions  hung  round  the  prosecutor's  person  so  as  to 
render  all  attempts  at  resistance  hazardous,  if  not  vain  ;  and  in 
that  situation  rifled  him  of  his  property  ;  or  by  proof  of  any  other 
circumstances,  showing  just  grounds  of  apprehension  of  bodily 
harm,  to  avoid  which  the  party  ivhile  under  the  influence  of  such 
apprehension,  gave  up  his  money .^  If,  therefore,  robbers  finding 
but  little  money  on  the  person  of  their  victim,  enforce  him,  by 
menace  of  death,  to  swear  to  bring  to  them  a  greater  sum,  and 
while. the  fear  of  that  menace  still  continues  upo7i  him  he  delivers  the 
money,  it  is  robbery.*  It  is  also  said,  that  menace  of  the  de- 
struction of  one's  child  creates  a  sufficient  fear  to  constitute  rob- 
bery ;  but  no  direct  adjudication  is  found  upon  this  point,  though 
it  perfectly  agrees  with  the  principles  of  the  law  in  other  cases.^ 

1  2  East,  P.  C.  711,  712.  Staundf.  lib.  1,  c.  20;   and  Bracton  also 

2  Foster,  Cr.  L.  128.  On  this  point  rests  it  upon  the  latter  circumstance. 
Mr-  East  makes  the  following  observa-  Brae.  lib.  3,  fol.  1.50,  b.  I  have  the  au- 
tions:  "It  remains  further  to  be  consid-  thority  of  the  Judges  as  mentioned  by 
ered  of  what  nature  this  fear  may  be.  "Willcs,  J.,  in  delivering  their  opinion  in' 
This  is  an  inquiry  the  more  difficuft,  be-  Donnally's  case,  at  the  0.  B.  1779,  to  jus- 
cause  it  is  nowhere  defined  in  any  of  the  tify  me  in  not  attempting  to  draw  the  ex- 
acknowledged  treatises  upon  this  subject,  act  line  in  this  case  ;  but  thus  much  I  may 
Lord  Hale  proposes  to  consider  what  shall  venture  to  state,  that  on  the  one  hand  the 
be  said  a  putting  in  fear,  but  he  leaves  this  fear  is  not  confined  to  an  apprehension  of 
part  of  the  question  untouched.  1  Hale,  bodily  injury  ;  and,  on  the  other  hand,  it 
5.34.  Lord  Coke  and  Hawkins  do  the  must" be  of  such  a  nature  as  in  reason  and 
same.  3  Inst.  68 ;  2  Hawk.  Ch.  34.  Mr.  common  experience  is  likely  to  induce  a 
Justice  Foster  seems  to  lay  the  greatest  person  to  part  with  his  property  against 
stress  upon  the  necessity  of  "the  property's  his  will,  and  to  put  him,  as  it  were,  under 
being  taken  arjainst  the  will  of  the  parti/,  a  temporary  suspension  of  tlie  power  of 
and  he  lays  the  circumstance  of  fear  out  of  exercising  it  through  the  influence  of  the 
the  question  ;  or  that  at  any  rate  when  the  terror  impressed ;  in  which  case  fear  sup- 
fact  is  attended  with  circumstances  of  vio-  plies,  a.s  well  in  sound  reason  as  in  legal 
ience  or  terror,  the  law  in  odium  spolinloris  construction,  the  phice  of  force,  or  an  act- 
will  presume  fear  if  it  be  necessary,  where  ual  taking  by  violence,  or  assault  upon 
there  appears  to  be  so  just  a  ground  for  it.  the  person."  2  East,  T.  C.  713.  See  also 
Foster,  123,  128.  Mr.  Justice  Blackstonc  the  remarks  of  Ilotham,  B.,  in  Donnally's 
leans  to  tlic  same  opinion.  4  Bl.  Comm.  case,  Id.  718;  Rex  v.  Taplin,  2  East,  P. 
242.     But  neither  of  tliein  afford  any  pre-  C.  712. 

cise  idea  of  the  nature  of  the  fear  or  ap-  ^  Rex  v.  ILughes,  1  Lewin,  C.  C.  301  ; 

prehension  supposed  to  exist      Staumlford  1  Russ.  on  Crimes,  879, 

defines  rot)bery  to  be  a  felonious  taking  of  *  2  East,  P.  C  714;   1  Hale,  P.  C.  .532. 

anything  from  the  person  or  in  the  pres-  ^  Rex  r.   Donnally,  2  East,  F.  C.  715, 

cnce  of  another  openly,  and  wjuinst  his  will;  718,  per  Hotham,  B. ;  1  Leach,  C.  C  (4th 


TART  v.]  EOBBERY.  189 

§  233.  The  fear  of  injury  to  one's  'property  may  also  be  sulTi- 
cieiit  to  constitute  this  offence.  Thus,  where  money  was  given  to 
a  mob,  under  the  influence  of  fear  arising  from  threats,^  or  just 
apprehension  ^  that  they  would  destroy  the  party's  house,  it  has 
been  held  to  be  robbery.  So,  where  a  mob  compelled  the  posses- 
sor of  corn  to  sell  it  for  less  than  its  value,  under  threats  that  if  he 
refused  they  would  take  it  by  force  ;  this  also  was  held  to  be  rob- 
bery.^ And  it  is  held,  that  the  prosecutor,  in  support  of  the  charge, 
may  give  in  evidence  other  similar  conduct  of  the  same  prisoners, 
at  other  places  on  the  same  day,  before  and  after  the  particular 
transaction  in  question.'* 

§  234.  As  to  the  fear  of  injury  to  the  reputation^  it  has  been  re- 
peatedly held,  that  to  obtain  money  by  threatening  to  accuse  the 
party  of  an  unnatural  crime,  whether  the  consequences  appre- 
hended by  the  victim  were  a  criminal  prosecution,  the  loss  of  his 
place,  or  the  loss  of  his  character  and  position  in  society,  is  rob- 
bery.^ And  it  is  immaterial  whether  he  were  really  guilty  of  the 
unnatural  crime  or  not ;  for  if  guilty,  it  was  the  prisoner's  duty  to 
have  prosecuted  and  not  to  have  robbed  him.^  But  where  the 
money  was  given  at  a  time  appointed,  not  from  fear  of  the  loss  of 
reputation,  but  for  the  purpose  of  prosecuting  the  offender,  it  has 
been  held  not  to  constitute  robbery.' 

§  235.  But  it  has  also  been  held,  that  in  order  to  constitute 
robbery  in  cases  of  this  sort,  the  money  must  be  parted  with  from 
an  immediate  apprehension  of  present  danger,  upon  the  charge  heing 
made ;  and  not  where  the  party  has  had  time  to  deliberate  and 
opportunity  to  consult  friends,  and  especially  where  he  has  had 

ed.),  193;   Eex  v.  Eeane,  2  East,  P.  C.  ^  Rex  ?;.  Astley,  2  East,  P.  C.  729 ;  Rex 

735,   736,    per  Eyre,   C.  J. ;    1    Russ.  on  v.  Winkworth,  4  C.  &  P.  444. 

Crimes,  880,  892.     Bracton,  in  treating  of  ^  Rex  v.  Spencer,  2   East,  P.  C.  712, 

the  fear  that  will  vitiate  a  pretended  gift  713. 

of  good,  says  :   Et  non  solum  excusatur  *  Rex  v.  Winkworth,  4  C.  &  P.  444,  per 

quis  qui  exceptionem  habet,  si  sibi  ipsi  in-  Vaughan,  B.,  and  Pai'ke  and  Alderson, 

feratur  vis  vel  metus  ;  sed  etiam  si  suis,  ut  Js.     See  supra,  §  15. 

si  filio  vel  fihoe,  fratri  vel  sorori,  vel  aliis  ^  Rex  v.  Donnally,  2  East,  P.  C.  715; 

domesticis  ct  propinquis ;   Bracton,  lib.  2.  1   Leach,   C.   C.    (4th  ed.),    193;   Rex  v. 

De   acquirendo    rerum  dominio,    Cap.  5,  Hickman,  2  East,  P.  C.  728  ;  Rex  r.  Jones, 

§  13,  fol.  16  6;  and  he  cites  a  case  in  which  Id.  714;    Rex   v.   Elmstead,   1   Russ.   on 

a  grant  of  the  manor  of  Middleton  was  Crimes,  894 ;    Rex  v.  Egerton,  Id.   895 ; 

held  void,  it  being  obtained  by  duress  of  Russ.  &  Ry.  37^.     If  the  language  of  the 

imprisonment  of  the  grantor's  brother,  and  charge  is  equivocal,  it  may  be  connected 

to  procure  his  release.     But  it  has  been  with  what  was  afterwards  said  by  the  pris- 

held,  that  where  a  wife  was  compelled  to  oner,  when  he   was   taken  into   custody, 

give  money,  under  threats  of  accusing  her  Rcgina  v.  Kain,  8  C.  &  P.  187  ;  [The  I'eo- 

husband  of  an  unnatural  crime,  it  was  not  pie  v.  McDaniels,  1  Parker,  C.  R.  198.] 

robberv.     Rex  v.  Edwards,  5  C.  &  P.  518.  «  Rex  v.  Gardner.  1  C.  &  P.  479. 

1  Rex   v.   Brown,  2  East,   P.   C.  731;  T  Rex  ?;.  Fuller,  1  Russ.  on  Crimes,  896; 

Eex  v.  Simons,  Ibid.  Russ.  &  Ey.  C.  C.  408. 


190  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

their  advice  not  to  give  the  money,  and  the  presence  of  a  friend 
when  he  gave  it ;  for  this  would  seem  to  give  it  the  character 
rather  of  the  composition  of  a  prosecution  than  of  a  robbery .^ 
And  it  may  be  added,  that  in  all  the  cases  in  which  the  fear  of 
injury  to  the  reputation  has  been  held  sufficient  to  constitute  the 
oifence  robbery,  the  charge  threatened  was  that  of  unnatural  prac- 
tices. Whether  any  other  threat,  affecting  the  reputation,  would 
suffice,  is  not  known  to  have  been  decided,  and  may  possibly  admit 
of  doubt.2 

§  236.  On  the  trial  of  an  indictment  for  robbery^  the  dying  dec- 
larations of  the  person  robbed  are  not  admissible  in  evidence 
against  the  prisoner  ;  such  evidence,  though  sometimes  formerly 
received,  being  now  held  admissible  only  upon  the  trial  of  a  charge 
for  the  murder  of  the  declarant.^ 

1  Rex  V.  Jackson,  1  East,  P.  C,  Ad-  ^  Threats  of  a  criminal  prosecution  for 

denda,   xxi.      And  see  Rex  v.    Cannon,  passing  counterfeit  money  have  been  held 

Russ.  and  Ry.    C.   C.   146;    1   Russ.  on  insufficient.     Brittz;.  The  State,  7  Humph. 

Crimes,  894  ;  Rex  v.  Reane,  2  East,  P.  C.  45. 

734.     The  like  distinction  is  recognized  in  ^  See  ante,  Vol.  1,  §  156  ;  Rex  v.  Mead, 

the  law  of  Scotland.    Alison's  Prin.  Crim.  2  B.  &  C.  605  ;   Rex  v.  Lloyd,  4  C.  &  P. 

L.,  pp.  231,  232.  233;  Wilson  v.  Boerem,  15  Johns.  286. 


PART  v.]  TREASON.  191 


TREASON. 

[*  §  237.  Definitions  of  treason  in  the  Constitution  of  the  United  States  and  of  the  ser- 
eral  States. 

238.  Misprision  of  treason  defined. 

239.  In  both  cases  allegiance  of  prisoner  to  State  must  be  alleged  and  proved. 

240.  An  overt  act  must  be  alleged  and  proved. 

241.  Overt  acts  not  alleged  may  be  proved  to  show  traitorous  intention. 

242.  Constructive  levying  of  war  sufficient,  and  what  amounts  to  such. 

243.  Constructive  presence  of  prisoner  sufficient. 

244.  What  acts  prove  adhering  to  the  public  enemies,  and  giving  them  aid  and  com- 

fort. 

245.  All  the  particeps  criminis  are  principals. 

246.  Two  witnesses  necessary  and  in  many  States  to  the  same  overt  act. 

247.  Rules  of  common  law  regulate  proof  of  misprision  of  treason,  unless  regu- 

lated by  statute. 

248.  Confession  not  sufficient,  unless  made  in  open  court.] 

§  237.  Treason  against  the  United  States^  as  defined  in  the 
Constitution,  "  Shall  consist  only  in  levying  war  against  them,  or 
in  adhering  to  their  enemies,  giving  them  aid  and  comfort."  And 
it  is  added,  that  "  No  person  shall  be  convicted  of  treason,  unless 
on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  Court."  ^  By  the  Crimes  Act,  this  ofifence 
may  be  committed  "  within  the  United  States  or  elsewhere,"  and 
is  expressly  limited  to  persons  owing  allegiance  to  the  United 
States.^  In  most  of  the  several  States,  treason  against  the  State  is 
defined  in  the  same  words,  or  in  language  to  the  same  efiect ;  and 
the  same  amount  of  evidence  is  made  necessary  to  a  conviction  ;  ^ 

1  Const.  U.  S.  art.  3,  §  3.     But  treason  bama,   Const,  art.  6,  §  2 ;    Texas,  Const 

is  also  a  crime  by  the  common  law.     Res-  1845,  art.  7,   §  2 ;    California,  Rev.  Stat, 

publica  u.  Chapman,  1  Dall.  56;    1   Hale,  1850,  ch.  99,  §  17;    Michigan,  Const,  art. 

V.    C.    76;  3   Inst.  4;   4  Bl.  Comm.  75,  1,  §  16;   Indiana,  Const,  art.  11,  §§  2,  3; 

76.  Arkansas,  Const,  art.  7,   §  2 ;    Rev.  Stat. 

•^  Stat.  April  30,   1790,  §  1,  Vol.  1,  p.  1837,  ch.  44,  div.  2,  §  1 .  p.  238;    Missouri, 

112  (Peters's  ed.).  Const,  art.  13,  §  15  ;   Wisconsin,  Const,  art. 

3  See  Maine,  Const,  art.  1,  §  12  ;    Rev.  1,  §  10 ;  Iowa,  Const,  art.  1,  §  16  ;  Florida, 

Stat.  1840,  ch.  153,  §§  1,2;  Massachusetts,  Thompson's  Dig.  p.  490,  ch.  2  ;  Louisiana, 

Rev.   Stat.    1836,  ch.   124,  §§  1,  2;    New  Const,  art.  6,  §  2 ;    Mississippi,  Const,  art. 

Hampshire,  Rev.  Stat.  1842,  ch.  213,  §  1  ;  7,  §  3.     In  Georgia  (Penal  Code,  1833,  div. 

Rhode  Is/and,  Rev.  Stat.  1844,  Crimes  Act,  3,  §  2,  Prince's  Dig.  p.  622  ;    Cobb's  Dig. 

§§  1,  3,  pp.  377,  378;    Connecticut,  Const.  Vol.  2,  p.  782),  the  crime  is  defined  in  the 

art.  9,  §  4  ;    Delaiuare,  Const,  art.  5,  §  3  ;  same  manner,  but  the  proof  is  modified,  aa 

Virginia,  Code  of  1849,  ch.  190,  §  1 ;  Ala-  wiU  be  seen  in  its  proper  place. 


192  LAW   OF   EVIDENCE  IN   CRIMINAL   CASES.  [PAKT  V. 

but  in  a  few  of  the  States,  both  the  crime  and  the  requisite  proof 
are  described  with  other  qualifications.  Tlius,  in  New  York,  trea- 
son is  declared  to  consist,  1.  In  levying  war  against  tlie  people  of 
this  State,  within  the  State  ;  2.  In  a  combination  of  two  or  more 
persons,  by  force,  to  usurp  the  government  of  the  State  or  to  over- 
turn the  same,  evidenced  by  a  forcible  attempt,  made  within  the 
State,  to  accomplish  such  purpose  ;  and,  3.  In  adherhig  to  the 
enemies  of  this  State,  while  separately  engaged  in  war  with  a 
foreign  enemy,  in  the  cases  prescribed  in  the  Constitution  of  the 
United  States,  and  giving  to  such  enemies  aid  and  comfort,  in  this 
State  or  elsewhere.^  A  similar  division  and  description  of  the 
offence  is  found  in  the  statute  of  Mississippi?  In  Virginia,  it  is 
enacted,  that  "  Treason  shall  consist  only  in  levying  war  against 
the  State,  or  adhering  to  its  enemies,  giving  them  aid  and  comfort, 
or  establishing,  without  authority  of  the  legislature,  any  govern- 
ment within  its  limits,  separate  from  the  existing  government,  or 
holding  or  executing,  in  such  usurped  government,  any  office,  or 
professing  allegiance  or  fidelity  to  it,  or  resisting  the  execution  of 
the  laws,  under  color  of  its  authority."  And  the  same  amount  of 
proof  is  required,  as  in  treason  against  the  United  States.^  In 
Netv  Jersey,  treason  is  limited  to  levying  war  against  the  State  and 
adhering  to  its  enemies,  giving  them  aid  and  comfort,  by  advice  or 
intelligence,  by  furnishing  them  money,  provisions,  or  munitions 
of  war,  by  treacherously  surrendering  any  fortress,  troops,  citizen, 
or  public  vessel,  or  otherwise.*  The  statute  of  Pennsylvania  on 
this  subject,  enacted  during  the  Revolution,  renders  it  treason  in 
any  person  resident  within  the  State  and  under  the  protection  of 
its  laws,  to  take  a  commission  under  any  public  enemy  ;  or  to  levy 
war  against  the  State  or  its  government ;  or  to  aid  or  assist  any 
enemies,  at  open  war  with  the  State  or  United  States,  by  joining 
their  armies,  enlisting  or  procuring  enlistments  for  that  purpose, 
or  furnishing  them  with  arms  or  other  articles  for  their  aid  or 
comfort,  or  carrying  on  a  traitorous  correspondence  with  them,  or 
forming,  or  being  concerned  in  forming,  any  combination  to  betray 
the  State  or  country  into  their  hands,  or  giving  or  sending  intelli- 
gence to  them  for  that  purpose.^     In  South  Carolina  it  has  been 

1  New  York,  Rev.  Stat.  Vol.  2,  p.  746  *  New  Jersey,  Rev.  Stat.  1846,  tit.  8,  eh. 
(3dcd.).  1,  §l,p.  257. 

2  Mississippi,   IIow.   &   Ilutchins,    Dig.  *  P('nnsi/lrnnia,Btnt.Ych.\\.  \77(>,T)un- 
1840,  p.  691,  Tonit.  Code,  tit.  2.  §  2.        '  lop's  Di.u.  ch.  64,  §  .'!,  j).  120;    Respubliea 

8   Virginia,  Rev.  Stat.  1849,  ch.  190,  §  1.     v.  Carlisle,  1  Dali.  :i:i. 


PART  v.]  TREASON.  193 

thought  doubtful  whether  any  law  concerning  treason,  anterior  to 
their  Constitution  of  1790,  could  be  of  force  since  that  time  ;^  and 
in  several  of  the  States  the  opinion  has  been  entertained,  to  some 
extent  that  treason,  by  levying  war  against  a  single  State,  was 
necessarily  an  offence  against  the  United  States,  and  therefore 
cognizable  as  such  by  none  but  the  national  tribunals  .^  But  as 
war  may  be  levied  against  a  single  State  by  an  open  and  armed 
opposition  to  its  laws,  without  any  intention  of  subverting  its  gov- 
ernment, the  better  opinion  is  that  the  State  tribunals  may  well 
take  cognizance  of  treasons  of  this  description,  and  of  any  others 
directly  affecting  the  particular  State  alone. ^ 

§  238.  Misprision  of  treason  against  the  United  States,  is  when 
any  person,  having  knowledge  of  the  commission  of  any  treason, 
shall  conceal,  and  not,  as  soon  as  may  be,  disclose  the  same  to  the 
President  of  the  United  States,  or  some  one  of  the  Judges  thereof, 
or  to  the  Governor  of  a  particular  State,  or  some  one  of  the 
Judges  or  Justices  thereof.*  This  offence  is  defined  substantially 
in  the  same  manner  in  the  laws  of  several  of  the  States  ;  but  these 
statutes  are  all  merely  recognitions  of  the  doctrine  of  the  common 
law,  which  is  prevalent  in  the  whole  country.^ 

§  239.  In  indictments  for  treason,  it  is  material  to  allege  that 
the  party  owed  allegiance  and  fidelity  to  the  State  against  which  the 
treason  was  committed ;  and  this  allegation  seems  equally  material 
in  a  charge  of  misprision  of  treason.  It  may  be  proved  by  evi- 
dence that  the  party  was  by  birth  a  citizen  of  the  State  or  of  the 
United  States,  as  the  case  may  be  ;  or  that,  though  an  alien,  he 
was  resident  here,  with  his  family  and  effects.  And  if  he  were 
gone  abroad,  leaving  his  family  and  effects  here,  his  allegiance  to 
the  government  is  still  due  for  the  protection  they  receive.^ 

1  See  S.  Car.  Statutes  at  Large,  Vol.  2,  1   Kent,    Comm.    442,    note    (7th   ed.) ; 

pp.  717,  747,  notes  by  Dr.  Cooper,  the  au-  Whart.   Am.    Crim.    Law,   786;    Dorr's 

thorized  editor.     He  adds:  "I  know  of  no  Trial,  Id.  786-790;  The  People  u.  Lynch, 

treason  law  in  this  State,  as  yet."     But  in  11  Johns.  549. 

a  subsequent  volume  is  found  a  statute  *  Crimes  Act.  April  30,  1790,  §  2. 

making  it  treason  for  any  one  to  be  con-  ^  4  Bl.  Comm.  119,  120;    1  Hale,  P.  C. 

cerned  with  slaves  in  an  insurrection,  or  to  372 ;   Bracton,  Lib.  3,  De  Corona,  cap.  3, 

incite  them  to  insurrection,  or  to  give  them  fol.  118,  b.     In  Florida,  the  act  of  endeav- 

iiid  and  comfort  therein.     Id.  Vol.  5,  p.  oring  to  join  the  enemies  of  the  State,  or 

503;  Stat.  Dec.  19,  1805,  No.  1860.  persuading  others  to  do  so,  or  to  aid  and 

^  See  Livingston's  Penal  Code  for  Lou-  comfort  them,  is  declared  to  be  a  mispris- 

isiana.  Introductory  Report,  p.  148 ;  4  Am.  ion  of  treason,  as  well  as  knowing  of  the 

Law    Mag.    318-350  ;     Wharton's    Am.  same,  or  knowing  of  any  treason  and  con- 

Crim.  Law,  p.  785  ;   Walker's  Introd.  pp.  cealing  it.     Thomps.  Dig.  p.  222. 

151,  458.  6  2  Kent,  Comm.  Lect.  25,  pp.  1  -  15,  26 

3  Rawle  on  the  Constitution,  pp.  142,  [39-53, 63,64];  1  East,  P.  C.  52,53;  1  Hale, 

143;    Sergeant  on  Constit.  Law,  p.  382;  P.  C.  59,  62,  92;  Vattel,  b.  2,  §§  101, 102, 

VOL.   III.  13 


194  LAW   OF  EVIDENCE  IN  CRIMINAL   CASES.  [PART  V. 

§  240.  In  every  indictment  for  this  crime,  an  overt  act  also  must 
he  alleged  and  proved ;  for  it  is  to  the  overt  act  charged,  that  the 
prisoner  must  apply  his  defence.  But  it  is  not  necessary,  nor  is  it 
proper,  in  laying  the  overt  acts,  to  state  in  detail  the  evidence  in- 
tended to  be  given  at  the  trial ;  it  being  sufficient  if  the  charge  is 
made  with  reasonable  certainty,  so  that  the  prisoner  may  be  ap- 
prised of  the  nature  of  the  offence  of  which  he  is  accused.^  There- 
fore, if  writings  constitute  the  overt  act,  it"  is  sufficient  to  state  the 
substance  of  them ;  ^  or,  if  they  were  sent  to  the  enemy  for  the 
purpose  of  giving  intelligence,  it  will  suffice  simply  to  charge  the 
prisoner  with  the  overt  act  of  giving  and  sending  intelligence  to 
the  enemy  .^ 

§  241.  Though  the  evidence  of  treason  must  be  confined  to  the 
overt  act  or  acts  laid  in  the  indictment,  without  proof  of  which  no 
conviction  can  be  had  ;  yet,  for  the  purpose  of  proving  the  traitor- 
ous intention  with  which  those  acts  were  committed,  evidence  of 
other  overt  acts  of  treason,  not  laid  in  the  indictment,  is  admis- 
sible, if  there  be  no  prosecution  for  those  acts  then  pending.  And 
it  seems  sufficient  if  such  collateral  facts  be  proved  by  one  witness 
only ;  for  the  law  requiring  two  witnesses  is  limited  in  its  terms  to 
the  specific  overt  act  charged  ;  leaving  all  other  facts,  such  as 
alienage,  intention,  &c.,  to  be  proved  as  at  common  law.^  But  if 
the  overt  act  charged  is  not  proved  by  two  witnesses,  where  this  is 
required  by  law,  so  as  to  be  submitted  to  the  Jury,  all  other  testi- 
mony is  irrelevant  and  must  be  rejected.^  Respecting  the  intention 
of  the  prisoner,  or  the  object  or  meaning  of  the  acts  done,  we  may 
add,  that  he  is  not  of  necessity  bound  to  prove  this ;  but  the  entire 
offence  must  be  made  out  by  the  government.^ 

§  242.  Where  the  overt  act  of  levying  war  is  alleged  to  have 
been  an  armed  assemblage  against  the  government  for  that  purpose, 
this  allegation  may  be  proved  by  evidence  of  such  an  assemblage 
for  any  warlike  object  in  itself  amounting  to  an  actual  or  construc- 
tive levying  of  war ;  such  as,  to  prevent  the  execution  of  a  public 
law ;  ^  to  compel  the  repeal  of  a  law,  or  otherwise  to  alter  the  law; 

1  Foster,  194,  220;  4  Cranch,  490;  per  *  Layer's  case,  16  How.  St.  Tr.  215;  1 
Marshall,  C.  J.,  in  Burr's  case;  2  Burr's  East,  P.  C.  121-12.3;  United  States  v. 
Trial,  400.  Mitchell,  2  Dall.  348.    As  to  the  proof  of 

2  Uex  V.  Francia,  6  St.  Tr.  58,  73 ;  Rex  intention,  sec  supra,  §  14. 

V.  Ld.  Preston,  4   St.    Tr.  411;    Rex  v.  '■"  United  States  i-.  Burr,  4  Cranch,  493, 

Watson,  2  Stark.   R.  116,  137,  [104,  116-  505;  2  Burr's  Trial,  pp.  428,  443. 

118,   ed.    1823];    3  Eng.    Com.   L.    Rep.  «  Regina  v.  Frost,  9  C.  &  P.  129;  <S«- 

282.  pra,  §  17. 

8  Raspublica  v.  Carlisle,  1  Dall.  35.  '  Fries's  Trial,  p.  196. 


PART  v.] 


TREASON. 


195 


to  pull  down  all  buildings  or  enclosures  of  a  particular  description, 
or  to  expel  all  foreigners,  or  all  the  citizens  or  subjects  of  a  par- 
ticular country  or  nation.^  But  if  the  assemblage  appears  to  have 
been  for  objects  of  a  private  or  local  nature,  supposed  to  affect 
only  the  parties  assembled,  or  confined  to  particular  individuals  or 
districts,  such  as,  to  remove  a  particular  building  or  enclosure  ;  or 
to  release  a  particular  prisoner,  or  the  like,  this  evidence  will  not 
support  this  allegation.^ 


1  Rex  t'.  Ld.  Geo.  Gordon,  2  Doug. 
590;  Foster,  211-215;  I  Hale,  T.  C. 
132,  153;  1  East,  P.  C.  72-75. 

2  1  East,  P.  C.  75,  76;  Foster,  210;  1 
Hale,  P.  C.  131,  133,  149.  The  term 
"  levying  war,"  in  the  Constitution  of  the 
United  States,  has  been  expounded  by 
Mr.  -Justice  Curtis  in  the  following  terms  : 
"  This  settled  interpretation  is,  that  the 
words  '  levying  war  '  inelude  not  only  the 
act  of  making  war,  for  the  purpose  of  en- 
tirely overturning  the  government,  but 
also  any  combination  forciblj-  to  oppose 
the  execution  of  any  public  law  of  the 
United  States,  if  accompanied  or  followed 
by  an  act  of  forcible  opposition  to  such 
law,  in  pursuance  of  such  combination." 
"  The  following  elements,  therefore,  con- 
stitute this  offence:  1st.  A  combination, 
or  conspiracy,  by  which  different  indi- 
\-iduals  are  united  in  one  common  pur- 
pose. 2d.  This  purpose  being  to  prevent 
the  execution  of  some  public  law  of  the 
United  States,  by  force.  3d.  The  actual 
use  of  force,  by  such  combination,  to  pre- 
vent the  execution  of  such  law.  It  is  not 
enough  that  the  purpose  of  the  combina- 
tion is  to  oppose  the  execution  of  a  law  in 
some  particular  case,  and  in  that  only. 
If  a  person  against  whom  process  has  is- 
sued from  a  Court  of  the  United  States, 
should  assemble  and  arm  his  friends,  for- 
cibly to  prevent  an  arrest,  and,  in  pursu- 
ance of  such  design,  resistance  should  be 
made  by  those  thus  assembled,  they  would 
be  guilty  of  a  very  high  crime ;  but  it  would 
not  be  treason,  if  their  combination  had 
reference  solely  to  that  case.  But  if  pro- 
cess of  arrest  issues  under  a  law  of  the 
United  States,  and  individuals  assemble 
forcibly  to  prevent  an  arrest  under  such 
process,  pursuant  to  a  design  to  prevent 
any  person  ft-om  being  arrested  under  that 
law,  and  pursuant  to  such  intent,  force  is 
usued  by  them  for  that  purpose,  they  are 
guilty  of  treason.  The  law  does  not  dis- 
tinguish between  a  purpose  to  prevent  the 
execution  of  one,  or  several,  or  all  laws. 
Indeed,  such  a  distinction  would  be  found 
impracticalde,  if  it  were  attempted.  If  this 
crime  could  not  be  committed  by  forcibly 


resisting  one  law,  how  many  laws  should 
be  thus  resisted,  to  constitute  if?  Should 
it  be  two,  or  three,  or  what  particular  num- 
ber, short  of  all?  And  if. all,  how  easy 
would  it  be  for  the  most  of  treasons  to 
escape  punishment,  simply  by  excepting 
out  of  the  treasonable  design,  some  one 
law.  So  that  a  combination,  formed  to 
oppose  the  execution  of  a  law  by  force, 
with  the  design  of  acting  in  any  case  which 
may  occur  and  be  within  the  reach  of  such 
combination,  is  a  treasonable  conspiracy 
and  constitutes  one  of  the  elements  of  this 
crime.  Such  a  conspiracy  may  be  formed 
before  the  individuals  assemble  to  act,  and 
they  may  come  together  to  act  pursuant  to 
it ;  or,  it  may  be  formed  when  they  have 
assembled,  and  immediately  before  they 
act.  The  time  is  not  essential.  All  that 
is  necessary  is,  that,  being  assembled, 
they  should  act  in  forcible  opposition  to  a 
law  of  the  United  States,  pursuant  to  a 
common  design  to  prevent  the  execution 
of  that  law,  in  any  case  within  their  reach. 
Actual  force  must  be  used.  But  what 
amounts  to  the  use  of  force,  depends  much 
upon  the  nature  of  the  enterprise  and  the 
circumstances  of  the  case.  It  is  not  neces- 
sary that  there  should  be  any  military  ar- 
ray, or  weapons,  nor  that  any  personal  in- 
jury should  be  inflicted  on  the  officers  of  the 
law.  If  a  hostile  army  should  surround  a 
body  of  troops  of  the  United  States,  and 
the  latter  should  lay  down  their  arms  and 
submit,  it  cannot  be  doubted  that  it  would 
constitute  an  overt  act  of  levying  war, 
though  no  shot  was  fired,  or  blow  struck. 
The  presence  of  numbers  who  manifest  an 
intent  to  use  force,  if  found  requisite  to 
obtain  their  demands,  may  compel  sub- 
mission to  that  force  which  is  present  and 
ready  to  inflict  injury,  and  which  may 
thus  be  eft'ectually  used  to  oppose  the  ex- 
ecution of  the  law.  But  unfortunately,  it 
will  not  often  be  necessary  to  apply  this 
principle,  since  actual  violence,  and  even 
murder,  are  the  natural  and  almost  insep- 
arable attendants  of  this  great  crime." 
4  Monthly  Law  Reporter,  pp.  413,  414. 
Thus  far  the  learned  Judge  has  stated  the 
law  of  this  species  of  treason  in  precise  ac- 


196  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES.  [PART  V. 

§  243.  Ill  the  proof  of  a  charge  of  treason  by  levying  war,  it  is 
not  necessary  to  prove  that  the  prisoner  was  actually  present  at 
the  perpetration  of  the  overt  act  charged ;  it  being  sufficient  to 
prove  that  he  was  constructively  present  on  that  occasion.  The 
law  of  constructive  presence  is  now  well  settled.  Whenever  several 
persons  conspire  in  a  criminal  enterprise,  which  is  to  be  consum- 
mated by  some  principal  act,  or  some  decisive  stroke,  to  the  accom- 
plishment of  which  certain  other  acts  or  circumstances  are  directly 
subordinate  or  ancillary,  though  these  latter  are  to  be  performed 
at  a  distance  from  the  principal  scene  of  action,  and  consist  merely 
in  watching  and  warning  of  danger,  or  in  having  ready  the  means 
of  instant  escape,  or  the  like,  the  law  deems  them  all  virtually 
present  at  the  commission  of  the  crime,  and  therefore  all  alike 
guilty  as  principals.^  On  this  ground  it  is,  that  if  war  is  levied 
with  an  organized  military  force,  vexillis  explicatis,  all  those  who 
perform  the  various  military  parts  of  prosecuting  the  war,  which 
must  be  assigned  to  different  persons,  may  justly  be  said  to  levy 
war.  All  that  is  essential  to  implicate  them  is,  to  prove  that  they 
were  leagued  in  the  conspiracy,  and  performed  a  part  in  that 
which  constituted  the  overt  act,  or  was  immediately  ancillary 
thereto.^  But  if  the  personal  co-operation  of  the  prisoner  in  the 
general  enterprise  was  to  be  afforded  elsewhere,  at  a  great  dis- 
tance, and  the  acts  to  be  performed  by  him  were  distinct  overt 
acts,  he  cannot  be  deemed  constructively  present  at  any  acts,  ex- 
cept those  to  which  the  part  he  acted  was  directly  and  immediately 
ancillary.^ 

cordance  with  the  views  of  our  greatest  thing  from  creating  a  new  species  of  trea- 

Jurists.      See  United   States  v.   Vigol,  2  son,  by  judicial   construction ;    yet  these 

Dall.  346  ;  United  States  v.  Mitchell,  Id.  two  have  sometimes  been  confounded,  and 

348,  355 ;  Ex  parte  Bollnian,  4   Cranch,  in  one  instance,  by  a  Jurist  of  great  emi- 

75,126;  United  States  p.  Burr,  4  Cranch,  nence   (see  Tucker's  Blackstonc,  Vol.  4, 

481-486;    2    Burr's  Trial,    414-420;    3  Appendix  B.),  whose  reasoning,  however, 

Story  on  the  Constitution,  §§  1790-1795;  is  sufticiently  refuted  by  tlie  observations 

3    Storv,    Rep.   615.       [See  also  United  of    Marshall,    C.    J.,   in   Burr's   trial    (4 

States  V.   Hanvvay,  2  Wallace,  Jr.,  17  L.  Cranch,    493-502).       Professor    Tucker 

R.    344,    347.]      [*  Sec   charge  of  Judge  puts   the  case  of  a  person   in   Maryland, 

Sprague,    23    Law    Re])Ortcr,    705  ;    also,  hearing  of  Fries's  insurrection  in  Pennsyl- 

charge  of  Judge  Smalley,  Id.  597.]  vania,  and  lending  a  horse  or  money  to  a 

1  See  Commonwealth  v.  Knapp,  9  Pick,  person  avowedly  going  to  join  the  insur- 
496 ;  10  Pick.  477  ;  1  Hale,  P.  C.  ch.  34,  gents,  in  order  to  assist  him  in  his  jour- 
]>er  tot. ;  Supra,  tit.  Accessory  ;  4  ncy ;  and  asks  if  this  would  amount  to 
Cranch,  492,  493.  levying   war  in   Pennsylvania,  where   the 

•^  Burr's  case,  4  Cranch,  471 -476.  lender   never. was"?      The  answer  is  fur- 

2  Burr's  case,  4  Crancli,  494.  "  It  is  nished  by  referring  to  the  distinction 
manifest,  that  to  hold  a  party  to  have  been  taken  by  the  Court  in  Burr's  case.  The 
constructively  present  at  an  overt  act  of  indictment  must  state  tlie  s])ecific  overt 
treason,  which  treason  itself  is  already  ex-  act  of  trca.son.  If  what  was  done  in  Ma- 
pvessly  defined  by  law,  is  a  very  different  ryland  was  treasonable  in  itself,  and  is  so 


PART  v.] 


TREASON. 


197 


§  244.  The  charge  of  treason  by  adhering  to  the  public  enemies, 
giving  them  aid  and  comfort,  may  be  proved  by  evidence  of  any 
overt  acts,  stated  in  the  indictment,  done  with  that  intent,  and 
tending  to  that  end  ;  such  as,  joining  the  enemy  ;  liberating  pris- 
oners taken  from  him  ;  holding  a  fortress  against  the  State,  in 
order  to  assist  the  enemy  ;  furnishing  him  with  provisions,  intelli- 
gence, or  munitions  of  war  ;  destroying  public  stores  in  order  to 
aid  him ;  surrendering  a  fortress  to  him  ;  or  the  like.^  Public 
enemies,  are  those  who,  not  owing  allegiance  to  the  State,  or  to  the 
United  States,  are  in  open  and  warlike  hostility  thereto  ;  whether 
they  act  under  authority  from  a  foreign  State,  or  merely  as  volun- 
tary adventurers.  And  it  is  sufficient  to  prove  that  a  state  of  hostil- 
ity exists  in  fact,  witliout  proving  any  formal  declaration  of  war.^ 

§  245.  It  is  also  to  be  noted,  that  "  in  treason,  all  the  participis 
crimdnis  are  principals  ;  there  are  no  accessories  to  this  crime. 
Every  act,  which,  in  the  case  of  felony,  would  render  a  man  an 
accessory,  will,  in  the  case  of  treason,  make  him  a  principal."  ^ 

§  246.  In  regard  to  the  number  of  witnesses  requisite  to  convict 
of  treason,  it  is  now  universally  settled,  both  in  England  and  in 
this  country,  that  there  must  be  at  least  two  witnesses.  This  rule 
was  enacted  in  England  in  the  reign  of  Edward  VI.,*  and  has  been 


charged,  the  trial  must  be  had  in  Mary- 
land, and  the  application  of  the  doctrine 
of  constructive  presence  is  not  required. 
But  if  the  party  was  one  of  the  conspir- 
ators, and  his  act  constituted  a  part  of  the 
principal  overt  act  of  treason  perpetrated 
in  Pennsylvania,  the  State  line,  it  is  con- 
ceived, would  interpose  no  objection  to  his 
being  legally  particeps  criminis ;  any  more 
than  though  being  in  Maryland,  he  shot 
an  ofBcer  dead  who  was  on  the  Pennsyl- 
vania side  of  the  line.  If  a  citizen  of 
Newport,  in  Rhode  Island,  stationing 
himself  at  Seekonk,  in  Massachusetts, 
while  Dorr's  troop  of  insurgents  were 
storming  the  arsenal  in  Providence,  had 
supplied  them  with  arms  and  ammunition 
for  that  purpose,  could  he  have  escaped 
conviction  as  a  traitor  in  the  county  of 
Providence,  on  the  ground  that  he  was 
never  personally  in  that  county  1  Yet 
here  would  be  no  constructive  treason. 
The  crime  would  be  treason  by  levying 
war.  The  overt  act  would  be  storming 
the  arsenal  in  Providence ;  in  which  the 
prisoner  bore  an  essential,  though  a  sub- 
ordinate part.  And  if  he  bore  such  part, 
it  surely  can  make  no  difference  where  he 
stood  while  he  performed  it."  4  Monthly 
Law  Iviip.  p.  416,  417. 


1  Foster,  22,  197,  217,  219,  220  ;  1  East, 
P.  C.  66,  78,  79  ;  1  Hale,  P.  C.  146,  164; 
3  Inst.  10,  11;  United  States  v.  Hodges, 
2  Wheeler,  Cr.  C.  477 ;  Rex  v.  Ld.  Pres- 
ton, 12  How.  St.  Tr.  409;  Rex  v. 
Vaughan,  13  How.  St.  Tr.  486;  Rex 
V.  Gregg,  14  How.  St.  Tr.  1371 ;  Rex.  v. 
Hensey,  1  Burr.  642 ;  Rex  v.  Stone,  6  Tr. 
527. 

2  1  Hale,  P.  C.  163,  164;  Foster,  219; 
1  East,  P.  C.  77,  78 ;  4  Bl.  Comm.  82, 
83. 

3  Fries's  Trial,  p.  198,  per  Chase,  J. 
No  exception  was  taken  to  this  doctrine, 
in  that  case,  though  the  prisoner  was  de- 
fended by  the  ablest  counsel  of  that  day, 
and  the  case  was  one  of  deep  political  in- 
terest. The  same  law  is  laid  down  by 
Ld.  Hale,  as  "  agreed  of  all  hands  " ;  1 
Hale,  P.  C.  233.  Ld.  Coke  calls  it  "a 
sure  rule  in  law."  3  Inst.  138.  And  see 
Throgmorton's  case,  1  Dyer,  98  b,  pi.  56  ; 
Foster,  213;  Supra,  tit.  Accessories,  per 
tot. ;  1  East,  P.  C.  93,  94.  The  applica- 
tion of  this  doctrine,  however,  to  cases 
under  the  Constitution  of  the  United 
States,  was  questioned  by  Marshall,  C. 
J.,  in  Burr's  case,  4  Cranch,  496-502. 

*  Stat.  1,  Ed.  6,  ch.  12 ;  and  5  &  6,  Ed. 
6,  ch.  11. 


198 


LAW   OF   EVIDENCE  IN   CRIMINAL   CASES. 


[part  V. 


adopted  in  all  the  States  of  the  Union.  In  the  interpretation  of 
the  early  English  statutes,  it  was  held  sufficient  if  one  witness  tes- 
tified to  one  overt  act,  and  another  to  another,  of  the  same  treason;'^ 
and  this  construction  was  afterwards  adopted  by  act  of  Parliament.^ 
Tlie  same  construction  is  understood  to  be  the  rule  of  evidence  in 
trials  for  treason  against  those  several  States  of  the  Union  which 
have  not  made  a  different  provision.  But  the  Constitution  of  the 
United  States,  as  we  have  seen,  provides  that  "  No  person  shall  be 
convicted  of  treason,  unless  on  the  testimony  of  two  witnesses  to 
the  same  overt  act,  or  on  confession  in  open  Court "  ;  and  this  pro- 
vision has  been  adopted  by  the  constitutions  and  statutes  of  several 
of  the  individual  States.^  In  these  States,  therefore,  and  in  trials 
for  treason  against  the  general  government,  in  the  Courts  of  the 
United  States,  both  the  witnesses  must  speak  not  only  to  the  same 
species  of  treason,  but  the  same  overt  act  charged  in  the  indict- 
ment. But  whether,  where  the  overt  act,  constituting  the  treason, 
is  to  be  proved  by  evidence  of  several  distinct  facts,  which,  sepa- 
rately taken,  may  each  appear  innocent,  but  which  in  the  aggre- 
gate are  treasonable,  it  be  necessary  under  the  national  Constitu- 
tion, that  each  of  the  two  witnesses  should  be  able  to  testify  to  all 
the  facts  of  which  the  overt  act  of  treason  is  composed,  is  a  point 
not  known  to  have  been  expressly  decided. 

§  247.  The  proof  of  misprision  of  treason  is  regulated  by  the  rules 


1  This  construction  was  settled  upon  tlie 
trial  of  Ld.  Stafford,  who  was  indicted  for 
compassing  the  death  of  the  king.  "  And 
upon  this  occasion  my  Lord  Chancellor, 
in  the  Lords'  House,  was  pleased  to  com- 
municate a  notion  concerning  the  reason 
of  two  witnesses  in  treason,  which  he  said 
was  not  very  ftimiliar,  he  helieved  ;  and  it 
was  this,  —  anciently,  all  or  most  of  the 
Judges  were  churchmen  and  ecclesiastical 
persons,  and,  by  the  canon  law,  now  and 
then  in  use  all  over  the  Christian  world, 
none  can  be  condemned  of  heresy  hut  by 
two  lawful  and  credible  witnesses;  and 
hare  words  may  make  a  heretic,  but  not  a 
traitor,  and,  anciently,  heresy  was  trea- 
son ;  and  from  thence  the  parliament 
tiiouglU  fit  to  appoint,  that  two  witnesses 
ought  to  be  for  proof  of  high  treason." 
T.  Ilaym.  408. 

2  Stat.  7  W.  .3,  ch.  3,  §  2 ;  which  en- 
acts, that  no  person  shall  be  indicted, 
tried,  or  attainted  of  treason  or  misjjrision 
of  treason,  "but  u|)on  the  oaths  and  testi- 
mony of  t\vo  lawful  witnesses,  either  both 
of  them  to  the  same  overt  act,  or  one  of 


them  to  one  and  the  other  of  them  to  an- 
other overt  act  of  the  same  treason  "  ;  or 
upon  his  confession,  &c.  The  same  rule 
in  regard  to  treason  only,  has  been  enact- 
ed in  New  York.  Rev.  Stat.  Vol.  2,  p. 
820,  §  15. 

^  See  supra,  §  237.  In  Illinois,  it  is 
merely  required  that  the  party  bo  "  duly 
convicted  of  ojjcn  deed,  by  two  or  more 
witnesses."  Kev.  Stat.  1845,  ch.  30,  §  20. 
In  Florida,  and  in  Connecticut,  the  testi- 
mony of  two  witnesses,  "or  that  which  is 
equivalent  thereto,"  is  made  necessary  to 
every  capital  conviction.  Thompson's 
Dig.  p.  258,  §  159;  Connecticut  Kev.  Sat. 
1849,  tit.  6,  §  159.  In  Georgia,  it  is  re- 
quired that  the  party  accused  of  treason  be 
"  legally  convicted  of  open  deed,  by  two  or 
more  witnesses,  or  other  competent  and  cred- 
ible testimony,"  &c.  Penal  Code,  1833, 
I3iv.  3,  §  2;  Prince's  Dig.  p.  162;  2 
Col)b's  Dig.  p.  782.  In  Pennsylvania,  the 
language  of  the  law  is,  that  he  "  be  therfr- 
of  legally  convicted  by  the  evidence  of  two 
sufficient  witncs.ses,"  &c.  Stat.  Feb.  11, 
1777;  Dunlop's  Dig.  p.  120. 


PART  v.]  TREASON.  199 

of  the  Common  Law,  as  in  other  cases  of  crime,  in  all  those  States 
where  it  has  not  been  changed  by  statute.^ 

§  248.  It  may  here  be  added,  that  though  one  witness  may  be 
sufficient  to  prove  a  confession  of  ti-eason,  where  such  confession  is 
offered  in  evidence  merely  as  corroborative  of  other  testimony  in  the 
cause  ;  yet,  under  the  law  of  the  United  States,  and  of  those  States 
which  have  adopted  a  similar  rule,  the  prisoner  cannot  be  con- 
victed upon  the  evidence  of  his  confession  alone,  unless  it  is  made 
in  open  Court.^ 

1  The  only  exception  now  known  to  the  treason,  may  be  proceeded  against  for  a 

author,  is  the  provision  in  Maine,  Rev.  misdemeanor,  and  convicted  on  the  testi- 

Sat.   1840,  ch.  153,  §  4;  which  requires  mony  of  one  witness  alone.     Stat.  March 

the  same  amount  of  evidence  in  proof  of  8,  1780;  Dunlop's  Digest,  ch.  69,  p.  127. 
misprision  of  treason,  which  is  required  by         ^    Supra,  §  237;    Ante,  Vol.  1,  §  255. 

Stat.  7  W.  3,  ch.  3,  quoted  supra    §  246,  And  see  1  East,  P.  C.  131-135;  Respub- 

in  cases  of  treason.     In  Pennsylvania,  per-  lica  v.  Roberts,  1  Dall.  39 ;  Respublica  v. 

sons  charged  with  treason  or  misprision  of  McCarty,  2  Id.  86. 


PAET  YI. 


EVIDENCE  IN  PROCEEDINGS 


EQUITY. 


PART  VI. 

OF   EVIDENCE   IN   PROCEEDINGS    IN   EQUITY. 


CHAPTER    I. 

PRELIMINARY    OBSERVATIONS. 

[*  §  249.   Law  of  evidence  peculiar  to  equity  proceedings  treated  of  in  Part  VI. 

250.  How  rules  of  evidence  in  equity  differ  from  those  at  law,  in  examination  of 

defendant. 

251.  In  the  manner  of  taking  the  testimony  of  the  witnesses. 

252.  Objections  to  this  manner. 

253.  Burden  of  proof,  how  adjusted  in   treating  fiduciary  and  confidential  rela- 

tions. 

254.  Quantity  of  evidence  requisite  to  establish  fraud  or  trust,  less  than  at  law. 
254  a,  254  b.    This  proposition  further  discussed. 

255.  In  other  respects  niles  of  evidence  at  law  and  equity  the  same. 

256.  Course  of  proceeding  in  national  tribunals  of  the  United  States. 

257.  In  some  of  the  States  where  courts  of  law  have  equity  jurisdiction. 

258.  Practice  in  Connecticut  and  some  other  States. 

259.  Oral  testimony  admitted  in  large  part  of  the  United  States. 

260.  Party  entitled  to  trial  by  jury  of  questions  of  fact  in  equity  in  some  States. 

261.  Object  and  effect  of  a  trial  by  jury  in  chancery  proceedings  to  inform  tha 

conscience  of  the  court. 

262.  Chancellor  cannot  disregard  finding  of  the  jury,  where  the  constitution  se- 

cures the  right  to  such  trial. 

263.  Expositions  of  such  constitutional  provision  by  Supreme  Court. 

264.  Provisions  in  State  constitutions  on  this  subject. 

265.  Statute  provisions  for  securing  trial  by  jury. 

266.  Duty  of  court  to  order  trial  by  jury  considered. 

267.  Different  forms  of  chancery  proceedings  in  United  States. 

§  249.  In  the  first  volume  of  this  work,  those  general  rules  of 
Evidence  have  been  considered,  which  are  recognized  in  all  the 
tribunals  of  the  country,  however  various  their  modes  of  adminis- 


204  LAW   OF  EVIDENCE  IN  EQUITY.  [PART  VI. 

tering  justice  ;  including,  of  course,  the  general  principles  and 
rules  of  this  branch  of  the  law,  as  administered  in  Courts  of 
Equity.  Those  principles  and  rules,  therefore,  will  not  here  be 
repeated ;  it  being  proposed  in  this  place  merely  to  treat  of  mat- 
ters in  the  Law  of  Evidence  peculiar  to  proceedings  in  Courts  of 
Equity,  and  in  other  Courts  which  employ  forms  of  proceedings, 
substantially  similar  to  those. 

§  250.  The  rules  of  Evidence,  as  to  the  matter  of  fact,  as  Lord 
Hardwicke  long  since  remarked,  are  generally  the  same  in  Equity 
as  at  law.  It  is  only  in  particular  cases  that  they  differ ;  and 
these  are  either  the  investigation  of  frauds  or  trusts,  or  cases 
growing  out  of  the  peculiar  nature  of  the  proceedings. ^  These  pro- 
ceedings, as  on  a  former  occasion  has  been  observed,^  are  exceed- 
ingly diverse  from  those  at  Common  Law,  both  in  the  forms  of 
conducting  the  allegations  of  the  parties  and  in  the  means  by 
which  evidence  is  obtained.  For,  though  at  law  the  defendant 
may,  by  a  plea  of  the  general  issue,  put  the  plaintiff  upon  the 
proof  of  every  material  fact  he  has  alleged,  and  is  not  bound  to 
make  a  specific  answer  to  any;  yet,  in  proceedings  by  bill  in 
Equity,  the  plaintiff  may  require  the  defendant  to  answer  particm- 
larly^  and  upon  oath,  to  every  material  allegation,  well  pleaded,  in  the 
hill;  and  the  defendant  also,  by  a  cross-bill,  may  elicit  from  the 
plaintiff  a  similar  answer,  under  the  same  sanction ;  each  party 
being  generally  permitted  to  search  the  conscience  of  the  other, 
for  the  discovery  of  any  facts  material  to  his  side  of  the  con- 
troversy. The  object  of  this  stringent  course  of  proceeding  is  to 
furnish  an  admission  of  the  case  made  by  the  bill,  either  in  aid  of 
proof,  or  to  supply  the  want  of  it,  and  to  avoid  expense.^  The 
plaintiff  having  thus  appealed  to  the  conscience  of  the  defendant 
for  the  truth  of  what  he  has  alleged,  it  results,  as  a  reasonable  and 
just  consequence,  that  the  answer  of  the  defendant,  under  oath,  so 
far  as  it  is  responsive  to  the  bill,  is  evidence  in  the  cause,  in  proof 
of  the  facts  of  which  the  bill  seeks  a  disclosure ;  and  being  so,  it  is 
conclusive  evidence  in  the  defendant's  own  favor,  unless,  as  will 
hereafter  be  seen,  the  plaintiff  can  overcome  its  force,  either  by 
the  testimony  of  two  opposing  witnesses,  or  of  one  witness,  corrob- 
orated by  other  facts  and  circumstances  sufficient  to  give  it  a 

1  Manning  v.   Lechmere,   1  Atk.  453;  Reed  v.   Clark,   4  Monr.  20;    Baugh   v. 

Glynn  v.  Rank   of  England,  2  Vcs.  41  ;  Ramsey,  Id.  157. 

Man    V.    Ward,    2    Atk.    228.      And    sco  '^  Ante,  Vol.  2,  §  4. 

Dwight  V.  romeroy,  17  Mass.  303,  325;  »  Wigram  on  Discovery,  Introd.  §  2, 


PAKT  VI.]  PRELIMINARY   OBSERVATIONS.  205 

greater  weight  than  the  answer.^  The  obvious  utility  of  this  prac- 
tice of  examining  the  defendant  himself  has  led  to  its  adoption,  to 
some  extent,  in  several  of  the  United  States,  in  suits  at  Common 
Law,  as  will  be  subsequently  shown. 

§  251.  Another  material  diversity  between  proceedings  in  Equity 
and  at  Common  Law,  affecting  the  rules  of  evidence,  is  in  the 
manner  of  taking  the  testimony  of  witnesses ;  the  latter  requiring 
the  examination  to  be  open  and  vivd  voce ;  while  in  Equity  it  is 
taken  secretly,  and  in  writing.^  The  reason  of  this  diversity  is 
said  to  be  found  in  the  difference  of  the  objects  sought  to  be 
attained,  and  in  the  result  of  the  controversy.  At  Common  Law, 
the  Jurors  are  not  to  decide  on  the  general  merits  of  the  whole 
case,  nor  to  elicit  a  conclusion  of  law  from  a  series  of  facts  laid  be- 
fore them  ;  but  are  merely  to  find  the  truth  of  the  particular  issue 
of  fact  submitted  to  their  decision.  In  order  to  do  this,  it  is  im- 
portant that  the  witnesses  should  be  examined  and  cross-examined 
publicly,  in  their  presence,^  that  the  entire  mass  of  evidence 
should  be  commented  on  by  advocates,  and  that  it  be  summed  up 
to  them,  with  proper  instructions,  by  the  Court.  After  this,  the 
Court  renders  the  proper  judgment  upon  the  whole  case,  as  it 
appears  both  in  law  and  in  fact  upon  the  record.  The  evidence  is 
not  judicially  recorded ;  for  its  results  are  found  in  the  verdict ; 
and  there  is  no  occasion  to  preserve  it  for  the  information  of  any 
appellate  Court,  the  Common  Law  not  permitting  any  appeal,  in 
the  modern  sense  of  the  term,  from  a  lower  to  a  higher  tribunal. 
But  in  Equity,  the  determination  of  the  particular  issues  of  fact  is 
not  the  principal  object,  though  essential  to  its  final  attainment ; 
but  the  object  is,  first,  to  obtain  and  preserve  a  sworn  detail  of 
facts,  on  which  the  Court  may,  upon  deliberation,  adjudge  the 
equities,  and,  secondly,  to  preserve  it  in  an  authentic  record,  for 
the  use  of  an  higher  tribunal,  should  the  cause  be  carried  thither 

1  Ante,  Vol.  1,  §  260 ;  2  Story,  Eq.  Jiir.  are  served  on  the  adverse  party  by  a  cer- 
§  1528 ;  Gresley  on  Evid.  in  Equity,  p.  4 ;  tain  day,  in  order  that  he  may  prepare  and 
Pember  v.  Mathers,  1  Bro.  Ch.  II.  52,  and  file  his  cross-interrogatories ;  and  the  cap- 
cases  in  note  by  Perliins ;  Evans  v.  Bick-  tion  to  the  interrogatories  usually  states) 
nell,  6  Ves.  183;  \Post,  §§  277-290.]  the  names  of  the  witnesses,  if  known.  The 
[*  Tobey  v.  Leonards,  2  WaUace,  U.  S.  parties,  therefore,  can  generally  form  prob- 
Rep.  423;  Parker  v.  Phetteplace,  1  lb.  able  conjectures  of  the  drift  of  the  evidence 
689.  See  Lancaster  v.  Ward,  I  Overton,  to  be  taken,  though  its  precise  import  may 
Tenn.  R.  430.]  remain  unknown  until  the  publication  of 

2  In  the  American  practice,   in   those  the  depositions.     [See  post,  §  259,  note.] 
States  whose   modes  of  proceeding  most         ^  The  student  will  hardly  need  to  be  re- 
nearly  approach  the  old  chancery  forms,  minded  that  the  use  of  depositions  in  tri- 
the  interrogatories  to  witnesses  are  ordina-  als  at  Common  Law,  is  only  authorized  by 
rily  filed  in  the  clerk's  oifice,  and  copies  statutes. 


206  LAW   OF  EVIDENCE  IN  EQUITY.  [PART  VI. 

by  appeal;  —  a  proceeding,  though  unknown  to  the  Common  Law, 
yet  of  familiar  use  in  Courts  of  Equity,  Admiralty,  and  Ecclesias- 
tical jurisdiction.^ 

§  252.  This  mode  of  taking  testimony  in  Equity  is  open  to  two 
objections :  first,  that  its  protracted  nature,  by  interrogatories  filed 
from  time  to  time,^  enables  the  party  to  discover  any  defects  in  his 
proof,  and  furnishes  the  temptation  to  remedy  them  by  false  testi- 
mony ;  and  secondly,  that  its  secrecy  may  not  only  afford  facilities 
to  perjury,  but  may  lead  to  imperfect  statements  of  the  truth, 
especially  where  the  party  has  so  artfully  framed  his  interrogato- 
ries, as  to  elicit  testimony  only  as  to  the  part  of  the  transaction 
most  favorable  to  himself.  The  former  of  these  objections  is  in- 
tended to  be  obviated  not  only  by  the  entire  secrecy  with  which 
the  testimony  is  taken,  no  person  being  present  except  the  exam- 
ining officer  and  tlie  witness,  but  also  by  the  rule,  that,  until  all 
the  testimony  is  taken,  and  the  depositions  are  opened  and  given 
out,  or,  as  it  is  termed,  until  publication  is  passed,  neither  party 
is  permitted  to  know  what  has  been  testified ;  and  that  after  publi- 
cation, no  witness  can  be  examined  without  special  leave  of  the 
Court.  The  latter  objection  is  more  difficult  of  remedy,  but  it  is 
in  a  great  measure  obviated  by  the  rule,  hereafter  to  be  ex- 
pounded, that  in  order  to  give  weight  to  evidence,  the  facts  which 
it  is  intended  to  establish  must  previously  have  been  alleged  in  the 
pleadings.^ 

§  253.  A  further  diversity  between  the  course  of  Courts  of 
Equity  and  Courts  of  Common  Law,  will  be  found  in  the  adjust- 
ment of  the  burden  of  jiroof^  in  their  treatment  of  fiduciary  and 
confidential  relations  between  the   parties.      If,  for  example,  an 

^  Adams's  Doctr.  of  Equity,   pp.  365,  original   or  cross-examination,    until   the 

366.  commissioners  find  that  the  supply  of  wit- 

^  It  was  the  ancient  practice,  when  tes-  nesses  is  exhausted."  Campbell  v.  Scou- 
timony  was  to  be  taken  under  a  commis-  gal,  19  Ves.  5.i4.  Whether  new  iiiterrog'- 
sion,  to  exhibit  all  the  interrogatories  and  atories  can  now  be  exhibited  before  a  com- 
cross-interrogatorics  before  the  issuing  of  tnissioner,  under  the  English  rule,  is 
the  commission;  after  which  no  others  doubted.  2  Dan.  Ch.  Pr.  lOf)."),  lOS."). 
could  be  lilcd  ;  the  commissioners  being  [*  3d  Amcr.  Ed.  916,  9.'5.'5.]  Rut  the  prac- 
sworn  to  examine  the  witnesses  upon  the  tice  in  the  Courts  of  the  United  States, 
interrogatories  "now  produced  ami  left  and,  as  far  as  is  known  to  the  author,  in 
with  you."  But  in  the  Orders  in  Chan-  the  State  Courts  also,  is  to  permit  parties 
eery  in  184,5,  Keg.  104,  tlie  word  "now"  to  file  new  interrogatories  to  di  tie  rent  wit- 
was  omitted  from  the  oath  ;  and  even  ])rior  nesses,  from  time  to  time,  and  to  take  out 
to  that  period,  it  was  "  tlie  practice  in  new  commissions,  as  often  as  they  choose, 
country  causes  in  England,  to  feed  the  within  tlic  period  allowed  for  tnking  tcsti- 
commissioncrs  from  time  to  time  with  in-  mony.  Keene  v.  Meade,  3  Peters,  1,  10; 
terrogatories  for  the  examination  of  wit-  1  Hoffin.  Ch.  Pr.  476. 
nesses,  as  they  can  be  presented  either  for         ^  Adams's  Doctr.  of  Eq.  p.  367. 


PART  VI.]  PRELIMINARY  OBSERVATIONS.  207 

action  at  law  is  brought  upon  the  bond  of  a  client,  given  to  his 
attorney,  it  will  ordinarily  be  sufficient  for  the  plaintiflf  to  produce 
the  bond  and  prove  its  execution ;  the  bond  being  held,  at  law, 
conclusively  to  import  a  valuable  and  adequate  consideration. 
But  in  a  Court  of  Equity,  in  taking  an  account  of  the  pecuniary 
transactions  between  an  attorney  and  his  client,  the  production  of 
a  bond,  given  by  the  latter  to  the  former,  will  not  be  deemed 
sufficient  primd  facie  evidence  of  a  debt  to  that  amount,  but  the 
burden  of  proof  will  still  be  on  the  attorney,  to  prove  an  actual 
payment  of  the  entire  consideration  for  which  the  bond  was  given.-^ 
The  great  principle  by  which  Courts  of  Equity  are  governed  in 
such  cases,  is  this,  that  he  who  bargains  in  matter  of  advantage, 
with  a  person  placing  confidence  in  him,  is  bound  to  show  that  a 
reasonable  use  has  been  made  of  that  confidence.^  This  rule,  in 
its  principle,  applies  equally  to  parents,  guardians,  trustees,  pas- 
tors, medical  advisers,  and  all  others,  standing  in  confidential 
relations  with  those  with  whom  they  treat ;  the  burden  of  proof 
being  devolved  in  Equity  on  such  persons,  to  establish  affirmatively 
the  perfect  fairness,  adequacy,  and  equity  of  their  respective 
claims.^ 

[*And  where  the  solicitor  becomes  the  purchaser  of  an  estate 
of  his  client,  the  burden  of  sustaining  it,  at  least  within  twenty 

1  Jones  V.  Thomas,  2  Y.  &  C.  498 ;  Mylne  &  Craig,  269,  276,  277 ;  Billing  v. 
Lewes  zj.  Morgan,  3  Y.  &  J.  230.  And  see  Southee,  10  Eng.  Law  and  Eq.  R.  37; 
1  Story,  Eq.  Jur.  §§  309-314.  Whitehorn  v.  Hines,  1  Munf.  559;    Cris- 

2  Gibson  v.  Jeyes,  6  Ves.  278,  per  Ld.  pell  v.  Dubois,  4  Barbour,  393 ;  but  see 
Eldon.  Pratt  v.  Barker,  1   Sim.  R.  1  ;    Gozzet  v. 

3  Ibid.  And  see  1  Story,  Eq.  Jur.  Lane,  12  Mo.  215:  of  guardian  and  ward, 
§§  311-314,  and  cases  there  cited;  Hatch  Wedderburn  v.  Wedderburn,  4  Mylne  & 
V.  Hatch,  9  Ves.  292,  296,  297  ;  4  Desaus.  Craig,  41  ;  Hylton  v.  Hvlton,  2  Ves.  548, 
681;  Huguenin  I'.  Baseley,  14  Ves.  273;  549;  Hatch  i-".  Hatch,  9' lb.  297 ;  Wright 
Thompson  v.  HefFernen,  4  Dru.  &  War.  v.  Proud,  13  lb.  136;  Breed  v.  Pratt,  18 
285  ;  Popham  v.  Brooke,  5  Russ.  8  ;  Dent  Pick.  117  ;  Bostwick  v.  Atkins,  3  Comst. 
V.  Bennett,  2  Keen,  539  ;  Adams's  Doctr.  53  ;  Johnson  v.  Johnson,  5  Ala.  90 ;  Wright 
of  Eq.  pp.  184,  185.  [*  Corley  i\  Lord  ?;.  Arnold,  14  B.  Monroe,  638 ;  Sullivan  w. 
Stafford,  1  De  Gex  &  Jones,  258 ;  Hobday  Blackwell,  28  Mis.  737  :  of  trustee  and  ces- 
V.  Peters,  6  Jur.  N.  S.  794 ;  Cowdrv  v.  tui  que  trust,  Hatch  v.  Hatch,  9  Ves.  292, 
Day,  5  Jur.  N.  S.  1199.]  [For  cases  296  ;  Bulkley  y.  Wilford,  2  CI.  &Fin.  177  ; 
touching  the  relations  of  attorney  and  client,  Farnum  v.  Brooks,  9  Pick.  233  :  of  parent 
see  Montesquieu  v.  Sandys,  18  Ves.  313;  andckild,  Houghton  y.  Houghton,  i5Beav. 
Edwards  v.  Mevrick,  2  Hare,  60;  Carter  278;  Baker  y.  Bradlev,  35  Eng.  L.  &  Eq. 
V.  Palman,  8  CI.  &  Fin.  657,  706 ;  Stock-  449  ;  Slocum  v.  Marshall,  2  Wash.  C.  C. 
ton  y.  Ford,  11  How.  U.  S.  232;  Poillon  397;  Jenkins  y.  Pye,  12  Peters,  249;  Tay- 
V.  Martin,  1  Sandf  Ch.  569;  Howel  v.  lor  v.  Taylor,  8  How.  U.  S.  183;  and  so 
Ransom,  11  Paige,  538 ;  Evans  v.  Ellis,  5  in  the  case  of  a  voluntary  gift  to  one  who 
Denio,  640 ;  Hockenbury  v.  Carlisle,  5  has  put  himself  in  loro  parentis  towards 
Watts  &  Serg.  350 ;  Mott  v.  Harrington,  the  donor.  Archer  v.  Hudson,  7  Beav. 
12  Verm.  199  ;  Jones  v.  Thomas,  2  Younge  551  :  of  other  familu  relations,  as  brother  and 
&,  Coll.  498  ;  Champion  v.  Rigby,  1  Russ.  sister,  Sears  v.  Shafer,  2  Selden,  268  ;  Hew- 
&  Mylne,  539  :  of  physician  and  patient,  it  v.  Crane,  2  Halst.  Ch.  R.  159,  631  ;  and 
Dent  V.  Bennett,  2  Keen,  R.  539 ;    S.  C.  4  Boneg  v.  Hollingsworth,  23  Ala.  690.J 


208  LAW   OF  EVIDENCE  IN  EQIHTY.  [PART  VL 

years,  is  upon  him  ;  and  it  has  been  said  by  eminent  judges,  that 
the  same  weight  ought  not  to  be  given  to  the  lapse  of  time,  during 
the  continuance  of  the  relation  of  attorney  and  client,  as  in  other 
cases.i  Where  the  solicitor  proposes  to  take  any  contract  from  his 
client  for  compensation,  beyond  what  the  law  provides,  or  in  a 
different  form  more  advantageous  to  himself,  it  is  his  "  bounden 
duty  "  to  inform  his  client,  that  the  law  allows  no  such  charge.^ 
And  in  a  later  case  ,3  between  attorney  and  client,  it  was  held  in 
the  Court  of  Chancery  Appeal,  upon  argument  and  very  ext':jnd- 
ed  consideration,  that  it  is  incumbent  upon  persons  who  receive 
benefits  from  those  towards  whom  they  stand  in  confidential  rela- 
tion, to  show  that  such  persons  had  competent  and  independent 
advice,  and  this  rule  is  not  affected  by  the  age  or  capacity  of  the 
persons  conferring  the  benefits,  or  the  nature  of  the  benefits  con- 
ferred. But  this  will  not  extend  to  interfere  with  mere  trifling 
gifts,  without  proof,  not  only  of  influence  resulting  from  the  rela- 
tion, but  of  mala  fides,  or  of  undue  and  unfair  exercise  of  the 
influence. 

This  question  is  discussed  in  a  late  case  *  by  a  judge  of  great 
learning  and  experience,  with  his  accustomed  fearlessness  and 
point.  It  is  here  declared,  that  all  securities  taken  by  the  solicitor 
are  presumptively  void,  and  the  onus  is  thrown  upon  the  creditor 
of  showing  them  fair  and  upon  sufficient  consideration ;  and  that 
they  will  be  allowed  to  stand  only  for  the  actual  indebtedness,  as 
found  by  the  Court.  The  language  of  Judge  Sharswood,  in  his 
lecture  on  professional  ethics,  is  here  adopted  ^ :  "  When  the  relation 
of  solicitor  and  client  exists,  and  a  security  is  taken  by  the  solici- 
tor from  his  client,  the  presumption  is  that  the  transaction  is  un- 
fair, and  the  onus  of  proving  its  fairness  is  upon  the  solicitor." 
But  the  same  rule  will  not  always  apply  to  testamentary  disposi- 
tion in  favor  of  an  attorney  by  his  client,  which  might  be  appli- 
cable to  such  a  gift,  inter  vivos.^^ 

§  254.  Again,  there  is  said  to  be  a  diversity  in  the  amount  or 
quantity  of  evidence  which  those  Courts  respectively  require,  in  or- 
der so  to  establish  allegations  of  fraud  or  trust  as  to  entitle  the 
party  to  a  verdict  or  a  decree.     In  both  Courts  the  rule  is  well 

1  [*  Gresley  v.  Mousley,  5  Jur.  N.  S.  *  Brown  r.  &ilkley,  1  McCarter,  451,  by 
583.  Green,  Chancellor. 

2  Lyddon  v.  Moss,  5  Jur.  N.    S.  637  ;  ^2  Sharswood,  Prof.  Ethics. 
Morjian  v.  IligKins,  Id.  236.  '^  Hindson  v.  Weathercll,  5  De  Gcx,  M. 

8  Rhodes  t;.  Bate,  11  Jur.  N.  S.  803;  S.     &  G.  301.] 
C.  12  Id.  178. 


PART  VI.]  PRELIMINARY  OBSERVATIONS.  209 

settled,  that  fraud  is  never  to  be  presumed,  but  must  always  be 
established  by  proofs.^  But  Courts  of  Equity,  it  is  said,  will  act 
upon  circumstances,  as  indicating  fraud,  which  Courts  of  Law 
would  not  deem  satisfsictory  proofs  ;  or,  in  other  words,  will  grant 
relief  upon  the  ground  of  fraud,  established  by  presumptive  evi- 
dence, which  evidence  Courts  of  Law  would  not  always  deem  suf- 
ficient to  justify  a  verdict.^  Examples  of  this  class  are  found 
where  Courts  of  Equity  will  order  the  delivery  up  of  post  obit  and 
marriage-brocage  bonds,  and  composition-bonds  between  a  bank- 
rupt and  a  preferred  creditor,  to  induce  him  to  sign  the  certifi- 
cate ;  these  being  presumed  fraudulent.^ 

[*§  254  a.  It  is  not  safe  to  undertake  to  define  what  degree  or 
kind  of  proof  will  justify  a  Court  of  Equity  in  granting  relief 
against  fraud.  For  the  proof  must  satisfy  the  conscience  of  the 
Chancellor,  or  Court.  And  no  man  would  deem  it  prudent  to 
attempt  to  define  the  extent  of  that  indispensable  qualification  in 
a  Judge,  or  a  Court,  —  the  requisite  amount  or  quality  of  his  sense 
of  justice.  And  men's  views  in  weighing  evidence,  are  as  various 
as  their  forms  or  their  features.  All  we  can  say  is,  that  the  proof 
must  be  sufficient  to  satisfy  the  mind  of  the  triers  whether  Court 
or  Jury,  of  the  existence  of  fraud.  And  to  do  this,  it  must  be 
sufficient  to  overcome  the  natural  presumption  of  honesty  and  fair 
dealing.  And  that  is  undoubtedly  one  of  considerable  force. 
Hence  we  do  not  expect  Courts,  and  we  do  not  advise  Juries  to 
find  fraud,  except  upon  reasonably  satisfactory  evidence.  And  we 
are  by  no  means  certain,  that  Juries  are  more  reluctant  to  act,  in 
such  cases,  from  circumstances,  than  Judges.  We  should  incline 
to  the  contrary  opinion.  Hence,  we  could  not  subscribe  fully  to 
the  opinion  that  Courts  of  Equity  will  find  fraud  upon  any  less 
proof,  or  any  different  proof,  from  what  a  Jury  will  require.  We 
think  not.  A  Jury  is,  in  general,  we  believe  the  better,  the  fairer, 
and  more  competent  tribunal  to  investigate  a  question  of  fraud, 
depending  upon  circumstances.      And  besides,  if  we  admit  that 

1  Such  is  the  rule  of  the  Roman  Civil  proved,  being  deduced,  as  an  inference  of 

Law.      Dolnm  fx  indiciis  perspicttis  probari  fact,  from  other  facts  proved  in  the  case,  as 

convenit.     Cod.  Lib.  2,  tit.  21,  1.  6.     Or,  as  is  ordinarily  done  by  Juries,   in  trials  at 

the  commentators  expound  it,  indiciis  da-  law.     Mascard.  De  Prob.   Vol.  2,  Concl. 

ris  et  maiiifcstis.     Mascard.  De  Prob.  Vol.  532.     The  indicia  of  fraud  which  he  there 

2,  Concl.  5.31.     Henoch,  de  Prtesumpt.  lib.  enumerates   deserve   the  attention  of  the 

4 ;  Prffisumpt.  1 2,  n.  2.    Mascardus,  in  com-  student. 

menting  on  the  rule,  Dolus  ret^ulariter  non  "^    1   Story,  Eq.  Jur.  §§  190-193,  and 

prcesumitur,  states  a  large  number  of  excep-  cases  there  cited. 

tions  to  the  rule ;  but,  in  truth,  they  are  ^    Chesterfield  v.  Janssen,   1  Atk.  301, 

only  cases   in  which  Ihiud   is   indirectly  352;  Fullager  r.  Clark,  18  Ves.  481,  483. 

VOL.  III.  14 


210  LAW   OF   EVIDENCE  m  EQUITY.  [PART  VI. 

there  exists  in  Courts  of  Chancery,  a  capacity,  or  right,  or  duty, 
or  disposition,  to  find  fraud,  upon  less  proof,  or  different  proof, 
from  that  wliich  is  required  in  Courts  of  Law,  we  at  once  establish 
a  ground  of  preference  between  the  two  jurisdictions,  which  was 
never  before  claimed,  and  one  of  a  very  invidious  character  in  its 
practical  operation.  We  trust,  then,  that  no  one  will  be  drawn 
into  the  adoption  of  any  such  view  upon  the  subject.  We  only 
desire  to  caution  the  inexperienced  against  setting  out  with  any 
such  view,  since  the  general  course  of  opinion  and  practice  is 
now  decidedly  in  the  opposite  direction.  It  is  very  common  now, 
in  Courts  of  Equity,  to  send  issues  of  this  character  into  a  Court 
of  Law,  to  be  there  tried  by  a  Jury.  And  in  the  English  Courts 
of  Equity  they  are  sometimes  tried  by  a  Jury  summoned  into  the 
Court  of  Chancery.^ 

§  254  b.  The  extent  of  responsibility  for  a  false  representation 
is  thus  defined  in  a  recent  case.^  Every  man  must  be  held  re- 
sponsible for  the  consequences  of  such  an  act,  upon  which  any  one 
acts,  and  so  acting  suffers  loss  or  injury,  provided  it  appears  that 
the  representation  was  made  with  the  direct  intent  that  it  should 
be  so  acted  upon,  and  in  the  manner  which  occasions  the  injury  or 
loss,  and  where  such  injury  or  loss  is  the  direct  and  immediate 
consequence  of  the  representation  so  made.^] 

§  255.  These  diversities  in  the  course  of  proceeding  appear  to 
have  been  the  cause  of  all  the  modifications  which  the  rules  of  evi- 
dence, as  they  exist  at  Common  Law,  have  undergone  in  the  Court 
of  Chancery  in  England  ;  the  law  of  evidence,  as  administered  in 
the  Courts  of  Common  Law  and  of  Equity,  being  in  other  respects 
generally  the  same. 

§  256.  In  the  national  tribunals  of  the  United  States,  where 
the  jurisdiction,  both  at  Law  and  in  Equity,  is  vested  in  the  same 
Courts,  the  course  of  proceeding  is  nearly  the  same,  in  its  main 
features,  as  it  was  in  the  year  1841,  in  the  High  Court  of  Chan- 
cery in  England  ;  many  of  whose  Orders  of  that  year  wore  adopted 
in  the  Rules  of  Practice  ordained  by  the  Supreme  Court  in  1842  ;4 
with  a  general  reference  to  the  then  existing  English  practice  in 
Chancery,  as  furnishing  just  analogies  for  the  regulation  of  tlie 
practice  in  the  Courts  of  the  United  States,  in  all  cases  not  otlier- 
wise   provided   for.^     The   same   general   course    of    practice    is 

1  r#  po_^t,  §  261.  *  Hcj?.  Gon.  Sup.  Court,  U.  S.,  1  How. 

2  Barrv  ''■  'Cioskev,  2  Johns.  &  H.  21.        S.  C  K.  p.  xli.  -  Ixx. 

8  Collins  V.  Cavc/e  11.  &  N.  131.]  ^  Idem.  p.  Ixix.  Reg.  xc.     The  course 


PART  VI.]  PRELIMINARY   ODSERVATIONS.  211 

adopted  in  several  of  the  individual  States,  which  still  retain  a 
separate  Court  of  Chancery,  distinct  from  the  Courts  of  Common 
Law.  Such  is  the  case  in  the  States  of  New  Jersey,  Delaware, 
Tennessee,  South  Carolina,  Mississippi,  and  Alabama.^  In  these 
States,  therefore,  at  least,  as  well  as  in  the  national  tribunals,  the 
rules  of  evidence,  peculiar  to  proceedings  in  Chancery,  may  be 
supposed  to  be  generally  recognized  and  observed  ;  and  all  these 
rules  it  is  proposed,  for  that  reason,  to  state  and  explain  ; 
especially,  as  many  or  all  of  them  may  be  applicable,  to  some  ex- 
tent, and  in  various  degrees,  in  the  practice  of  the  other  States. 

§  257.  But  in  all  the  States,  except  those  above  named,  the 
jurisdiction  in  Equity  is  vested  in  the  Courts  of  Common  Law  ; 
and  in  many  of  these,  the  course  of  proceeding,  in  several  impor- 
tant particulars,  has  been  so  materially  changed,  that  it  is  hardly 
possible  to  construct  a  treatise  on  Evidence  in  Equity,  equally  ap- 
plicable or  useful  in  them  all.  Thus,  in  the  States  of  New  York, 
Lidiana,  Georgia,  Louisiana,  Texas,  and  California,  there  is  no 
distinction  in  the  forms  of  remedy  or  mode  of  trial,  in  civil  cases 
of  any  description,  whether  cognizable  in  other  States,  in  Courts 
of  Equity  or  of  Common  Law  ;  but  every  suit  is  prosecuted  and 
defended  by  one  uniform  mode  of  petition  and  answer,  to  which 
no  oath  is  required.^     It  is  obvious,  therefore,  that  in  these  States, 

of  Chancery  practice  in  England  has  re-  in  cases  where  they  apply.     This  provision 

cently  undcrf,^one  a  total  change,  by  the  is  held  to  include  those  statutes  of  the  sev- 

Etatiite  of  13  &  16  Vict.  c.  86,  and  the  new  eral  States  which   prescribe  rules  of  evi- 

Orders  thereupon  made  ;  greatly  simplify-  dcnce  in  civil  cases,  in  trials,  at  Common 

ing  and  improving  the  proceedings.     See  Law.     McNiel  t'.  Holbrook,  12  Pet.  84,  89, 

note,  at  the  end  of  this  chapter.  But  it  has  been  decided,  that  the  adoption 

1  The  office  of  Chancellor  still  exists  in  of  State  practice  must  not  be  understood 

Maryland,  but,  by  the  Constitution,  as  re-  as  confounding  the  principles  of  Law  and 

vised  and  adopted  in  1851,  it  is  to  cease  in  Equity;  that  the  distinction  between  Law 

two  years  from  that  time.     See  art.  -t,  §  2.3.  and  Equity  is  established  by  the  national 

In  Mississippi,  the  Constitution  establishes  Constitution ;  and  that,  therefore,  though 

a  Superior  Court  of  Chancery,  but  author-  a  party,  seeking  to  enforce  a  title  or  claim 

izes  the  Legislature  to  give  to  the  Circuit  at  Law  in  the  Courts  of  the  United  States, 

Courts  of  each  county  Equity  jurisdiction,  may  proceed   according   to  the   forms  of 

in  cases  where  the  value  in  controversy  does  practice   adopted  in   the    State  where   the 

not  exceed  live  hundred  dollars.     Art.  4,  remedy  is  pursued ;   yet,  if  the  claim  is  an 

§  16      [By  an  amendment  to  the  constitu-  equitable  one,  he  must  pi'oceed  according 

tion  of  Mississippi,  the  Superior  and  Vice  to  the  rules  which  the  Supreme  Court  of 

Chancery  Courts  have  been  abolished,  and  the  United  States  has  prescribed  for  the 

their  jurisdiction  transferred  to  the  Cir-  regulation  of  proceedings  in  Equity;  not- 

cuit  Courts.]  withstanding   the    State   laws    have  abol- 

^  The  Judiciary  Act  of  Congress  (1789,  ishcd  the  distinction  of  forms  of  procced- 

ch.  20,  §  34,  Vol.  1,  p.  92),  provides  that  ing  at  Law  and  in  Equity,  and  have  cstab- 

the   laws   of   the  several    States,    except  lished  one  uniform  and  peculiar  mode  of 

where  the  Constitution,  treaties,  or  statutes  remedy  for  all  cases.     Bennett  v.  Butter- 

of  the  United  States  shall  otherwise  re-  worth,  11  How.  S.  C.  R.  669.     And  see 

quire  or    provide,   shall   be   regarded    as  Livingston  v.  Story,  9  Pet.  632 ;  Gaines  v. 

rules  of   decision   in    trials   at   Common  Relf,  15  Pet.  9. 
Law,  in  the  Courts  of  the  United  States, 


212  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

that  part  of  the  law  of  evidence  which  relates  to  the  effect  of  the 
defendant's  answer  as  evidence  in  the  cause,  has  but  little  force, 
except  so  far  as  it  may  contain  voluntary  admissions  of  fact  against 
himself.^ 

§  258.  In  all  the  States  not  already  named,  the  proceeding  in 
Equity  is  understood  to  be  by  bill  and  answer,  according  to  the 
usual  practice  in  Chancery  ;  though  subject  to  some  modifications. 
Thus,  in  Connecticut,  though  the  complaint  is  by  bill,  the  defence 
is  cither  by  demurrer,  or  by  a  plea  of  general  denial  of  the  plain- 
tifTs  complaint,  and  this  without  oath  ;  no  oath  being  required  of 
the  defendant,  except  to  his  answer  to  a  bill  of  discovery  ;^  or,  by  a 
hearing  of  the  bill,  without  plea,  the  defendant  being  permitted  at 
the  hearing  to  prove  any  matter  of  defence. 

§  259.  In  many  other  States  it  is  either  expressly  enacted,  or 
implied  from  existing  enactments,  and  therefore  always  permitted, 
that  the  trials  of  fact,  in  Chancery  cases,  shall  or  may  be  by  wit- 
nesses orally  examined  in  Court,  or  by  depositions,  taken  in  the 
same  manner  and  for  the  same  causes  as  at  law.^  By  force  of 
these  provisions,  therefore,  and  this  course  of  practice,  all  that 
portion  of  the  law  of  evidence  in  Equity  which  relates  to  the  mode 
of  taking  testimony,  and  requires  it  to  be  secret,  and  by  deposi- 
tions, is  rendered  obsolete  in  more  than  half  the  territory  of  the 
United  States. 

§  260.  Another  and  very  material  inroad  upon  the  regular 
practice  in  Chancery  is  made  in  those  States  in  which  it  is  the 
right  of  the  party  to  have  a  trial  hy  Jury  of  all  questions  of  fact, 
in  cases  in  Equity,  as  well  as  at  Law.  In  the  Constitution  of  the 
United  States,  it  is  provided,  that,  "  In  suits  at  Common  Law, 
where  the  value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  trial  by  Jury  shall  be  preserved  ;  and  no  fact,  tried  by 
Jury,  shall  be  otherwise  re-examined  in  any  Court  of  the  United 

1  In  all  cases,  in  the  six  States  above  also,  3fissouri,  Rev.   Stivt.   1845,  oh.   137, 

mentioncMl,  and  in  JVeiv  Hampshire,  aTul  in  art.  3,  §§  10,  11  ;    Geor(]ia,  llotchk.  Dig. 

cases  in  Equity,  in  New  Jersey,  Ohio,  Wis-  pp.    583,    584  ;    1    Cobb's    Di<j:.    p.    276  ; 

consin,  Missouri,  ^fississi})pi,a.n([  Arkansas,  South    Carolina,  4,   Griff.   Rejij.   830,  870; 

provision  i.s  made  by  law  by  which  parties  Illinois,    Rev.    Stat.    1845,    ch.    40,   §    11; 

may,  under  certain   regulations,  examine  Stat,    of    1849,    Feb.    12,    §    1  ;    Florida, 

each  other  as  witnesses  in  the  cause,  thus  Thomj).   Dig.   p.  461  ;    Ohio,   Rev.    Stat, 

superseding,  to  a  great  extent,  the  use  of  1841,  ch.   46,  §  1  ;    Michigan,   Rev.    Stat, 

cross-bills.     See  ante.  Vol.  1,  §  361,  note.  1846,  ch.  00,-§§  49,  50,  51',  57;  Broome  v. 

-  Diitton's  Dig.  pp.  5-21,  525,  526,  530;  Beers,   supra ;' MassarhnsMs,    Stat.    1852, 

Broome  r.  Bcer.f,  6  Conn.  208,  209.  ch.  312,  §  85;   [G'l'.n.   Stat.   1860,  ch.   131, 

8    Such,  of  course,  is   the   practice   in  §  60;    Pingree  v.  Coffin,  12  Cash.  600;] 

those  States  wliere  but  one  form  of  rem-  Wisconsin,  Const,  art.  7,  §  19. 
cdy   is   pursued   in   all   civil   cases.      See 


PART  VI.] 


PRELIMINARY    OBSERVATIONS. 


213 


States,  than  according  to  the  rules  of  the  Common  Law."  ^  This 
provision  has  been  construed  to  embrace  all  suits,  which  are  not 
of  equity  and  admiralty  jurisdiction,  whatever  may  be  the  peculiar 
form  which  they  may  assume  to  settle  legal  rights  ;  and  the  latter 
clause  of  the  article  has  been  held  to  be  a  substantial  and  inde- 
pendent clause.^     This  being  the  case,  the  question  may  well  arise 


1  Const.  United  States,  Amendments, 
art.  7. 

2  Parsons  v.  Bedford,  3  Peters,  433.  In 
this  case,  which  was  brought  up  from  Lou- 
isiana, where  all  civil  proceedings  are  by 
petition  and  answer,  Mr.  Justice  Story,  in 
delivering  the  judgment  of  the  Court,  ex- 
pounded the  article  in  question  in  the  fol- 
lowing terras:  "At  the  time"  (referring 
to  the  time  of  its  adoption),  "there  were 
no  States  in  the  Union,  the  basis  of  whose 
jurisprudence  was  not  essentially  that  of 
the  Common  Law  in  its  widest  meaning ; 
and  probably  no  States  were  contemplated, 
in  which  it  would  not  exist.  The  phrase 
'  Common  Law,'  found  in  this  clause,  is 
used  in  contradistinction  to  Equity,  and 
Admiralty,  and  Maritime  jurisprudence. 
The  Constitution  had  declared,  in  the  third 
article,  '  that  the  judicial  power  shall  ex- 
tend to  all  cases  in  Latv  and  Eqtiity  arising 
under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which 
shall  be  made  under  their  authority,'  &c., 
and  to  all  cases  of  Arlmirnlty  and  ilaritime 
jurisdiction.  It  is  well  known  that  in  civil 
causes,  in  Courts  of  Equity  and  Admi- 
ralty, Juries  do  not  intervene,  and  that 
Courts  of  Equity  use  the  trial  by  Jury 
only  in  extraordinary  causes,  to  inform 
the  conscience  of  the  Court.  When,  there- 
fore, we  find  that  the  amendment  requires 
that  the  right  of  trial  by  Jury  shall  be  pre- 
served in  suits  at  Common  Law,  the  natu- 
ral conclusion  is,  that  this  distinction  was 
present  to  the  minds  of  the  framers  of  the 
amendment.  By  Common  Law,  they  meant 
what  the  Constitution  denominated  in  the 
third  article  '  Law,'  not  merely  suits  which 
the  Common  Law  recognized  among  its  old 
and  settled  proceedings,  but  suits  in  which 
legal  rights  were  to  be  ascertained  and 
determined,  in  contradistinction  to  those 
where  equitable  rights  alone  were  recog- 
nized, and  equitable  remedies  were  admin- 
istered ;  or  where,  as  in  the  admiralty,  a 
mixture  of  public  law,  and  of  maritime 
law  and  equity,  was  often  found  in  the 
same  suit.  Probably  there  were  few,  if 
any,  States  in  the  Union,  in  which  some 
new  legal  remedies,  differing  fi-om  the  old 
common-law  forms,  were  not  in  use;  but 
in  which,  however,  the  trial  by  Jury  inter- 
vened, and  the  general  regulations  in  other 
respects  were  according  to  the  course  of 


the  Common  Law.  Proceedings  in  cases 
of  partition,  and  of  foreign  and  domestic 
attachment,  might  be  cited  as  examples 
variously  adopted  and  modified.  In  a  just 
sense,  the  amendment,  then,  may  well  be 
construed  to  embrace  all  suits  which  are 
not  of  equity  and  admiralty  jurisdiction, 
whatever  may  be  the  peculiar  form  which 
they  may  assume  to  settle  legal  rights. 
And  Congress  seems  to  have  acted  with 
reference  to  this  exposition  in  the  Judici- 
ary Act  of  1789,  ch.  20  (which  was  con- 
temporaneous with  the  proposal  of  this 
amendment) ;  for  in  the  ninth  section  it  is 
provided,  that  '  the  trial  of  issues  in  fact  in 
the  District  Courts  in  all  causes,  except  civU 
causes  of  admiral fi/  and  maritime  jurisdic- 
tion, shall  be  by  Jury  ' ;  and  in  the  twelfth 
section  it  is  provided,  that  '  the  trial  of  is- 
sues in  fact  in  the  Circuit  Courts  shall,  in 
all  suits,  except  those  of  equitij,  and  of 
admiralty  and  maritime  jurisdiction,  be  by 
Jury';  and  again,  in  the  thirteenth  sec- 
tion, it  is  provided,  that  '  the  trial  of  issues 
in  fact  in  the  Supreme  Court  in  all  actions  at 
law  against  citizens  of  the  United  States, 
shall  l)e  by  Jury.'  But  the  other  clause  of 
the  amendment  is  still  more  important ; 
and  we  read  it  as  a  substantial  and  inde- 
pendent clause.  'No  fact  tried  by  a  Jury 
shall  be  otherwise  re-examinable,  in  any 
Court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  Common  Law.' 
This  is  a  prohibition  to  the  Courts  of  the 
United  States  to  re-examine  any  facts  tried 
by  a  Jury  in  any  other  manner.  The  only 
modes  known  to  the  Common  Law  to  re- 
examine such  facts,  are  the  granting  of  a 
new  trial  by  the  Court  where  the  issue  was 
tried,  or  to  which  the  record  was  properly 
returnable ;  or  the  award  of  a  venii-e  facias 
de  novo,  by  an  appellate  Court,  for  some 
error  of  law  which  intervened  in  the  pro- 
ceedings. The  Judiciary  Act  of  1798,  ch. 
20,  sec.  17,  has  given  to  all  the  Courts  of 
the  United  States  '  power  to  grant  new  tri- 
als in  cases  where  there  has  been  a  trial  by 
Jury,  for  reasons  for  which  new  trials  have 
usually  been  granted  in  the  courts  of  law.' 
And  the  appellate  jurisdiction  has  also 
been  amply  given  by  the  same  act  (sec.  22, 
24J  to  this  Court  to  redress  errors  of  law ; 
and  for  such  errors  to  award  a  new  trial, 
in  suits  at  law  which  have  been  tried  by  a 
Jury.     Was  it  the  intention  of  Congress, 


214  LAW   OF  EVIDENCE  IN   EQUITY.  [PART  VI. 

whether  the  finding  of  the  Jury  is  not  thereby  rendered  conclu- 
sive, in  issues  out  of  Chancery. 

§  261.  In  pursuing  this  inquiry,  it  will  be  expedient  to  con- 
sider, for  a  moment,  the  object  and  effect  of  a  trial  by  Jury,  in 
proceedings  which  are  strictly  according  to  the  ancient  course  in 
Chancery.  The  Chancellor  has  no  power  to  summon  a  Jury  to 
attend  him  ;  but  tries  the  whole  matter  in  controversy  alone, ^ 
By  the  theory  of  Equity  proceedings,  the  Court  addresses  itself  as 
the  conscience  of  the  defendant,  and  the  evidence  is  adduced  to 
confirm  or  to  refute  the  answer  he  may  give,  upon  his  oath,  or  to 
sustain  the  allegations  in  the  bill  which  he  is  unable  to  answer, 
and  to  enlighten  the  conscience  of  the  Chancellor  as  to  the  degree 
which  in  equity  he  ought  to  render.  He  may,  if  he  pleases,  as- 
sume to  himself  the  determination  of  every  matter  of  fact  sug- 
gested by  the  record  ;  but  if  the  facts  are  strongly  controverted 
and  the  evidence  is  nearly  balanced  ;  or  if  one  of  the  parties  has  a 
peculiar  right  to  a  public  trial,  upon  the  fullest  investigation,  as, 
if  the  will  of  his  ancestor,  or  his  own  legitimacy  and  title  as  heir- 
at-law  is  questioned  ;  or  the  Chancellor  feels  a  difficulty  upon  the 
facts,  too  great  to  be  removed  by  the  report  of  the  Master  or  Com- 
missioner ;  in  these,  and  other  cases  of  the  like  character,  it  is 
the  practice  in  general  for  the  Chancellor  to  direct  an  issue  to  be 
tried  at  law,  to  relieve  his  own  conscience,  and  to  be  satisfied,  by 

by  the  general  language  of  the  Act  of  construction  contended  for  at  the  bar  were 
1825,  to  alter  the  appellate  jurisdiction  of  to  be  given  to  the  act  of  Congress,  we  en- 
this  Court,  and  to  conrt;r  on  it  the  power  tertain  the  most  serious  doubts  whether  it 
of  granting  a  new  trial  by  a  re-examina-  would  not  be  unconstitutional.  No  Court 
tion  of  the  facts  tried  by  the  Jury  ?  to  en-  ought,  unless  the  terms  of  an  act  rendered 
able  it,  after  trial  by  Jury,  to  do  that  in  it  unavoidable,  to  give  a  construction  to 
respect  to  the  Courts  of  the  United  States,  it  which  would  involve  a  violation,  how- 
sitting  in  Louisiana,  which  is  denied  to  ever  unintentional,  of  the  Constitution, 
such  Courts  sitting  in  all  the  other  States  The  terms  of  tlie  present  act  may  well  be 
in  the  Union'?  We  think  not.  No  gen-  satisfied  by  limiting  its  operation  to  modes 
end  words  purporting  only  to  i-egulate  the  of  practice  and  proceeding  in  the  Court 
practice  of  a  particular  Court,  to  conform  below,  without  changing  the  cflcct  or  con- 
its  modes  of  proceeding  to  tiiose  prescribed  clusivcncss  of  the  verdict  of  the  Jury  upon 
by  the  State  to  its  own  Courts,  ouglit,  in  the  facts  litigated  at  the  trial.  Nor  is 
our  judgment,  to  receive  an  interpretation  there  any  inconvenience  from  this  con- 
whicli  would  create  so  important  an  alter-  struction ;  for  the  party  has  still  his  rem- 
ation  in  the  laws  of  the  United  States,  se-  cdy,  by  bill  of  exceptions,  to  bring  the 
curing  the  trial  by  Jury.  Especially  ought  facts  in  review  before  the  appellate  Court, 
it  not  to  receive  such  an  interpretation,  so  far  as  those  facts  bear  upon  any  ques- 
whcn  there  is  a  power  given  to  the  inferior  tion  of  law  arising  ac  the  trial;  and  if 
Court  itself  to  prevent  any  discrepancy  there  be  any  mistake  of  the  facts,  tho 
between  tlie  State  laws  and  the  laws  of  the  Court  below  "is  competent  to  redress  it  by 
United  States  ;  so  that  it  would  be  left  to  granting  a  new  trial."  Sec  3  Peters,  446, 
its  sole  discretion  to  suijcrsede,  or  to  give  449. 

conclusive  effect  in  tlic  ai)p(llate  ('ourt  to         '  1  Spencc  on  Eq.  Jur.  337. 
the  verdict  of  the  Jury.      If,  indeed,  the 


PART  VI.] 


PRELIMINARY    OBSERVATIONS. 


215 


the  verdict  of  a  Jury,  of  the  truth  or  falsehood  of  the  facts  in  con- 
troversy .^  [*In  the  English  Chancery  practice  it  is  allowable  to  try 
the  facts  in  a  case  by  a  Jury  summoned  into  the  Chancery  Court, 
although  it  is  said  that  this  is  not  generally  done,  unless  both  par- 
ties desire  it,  or  unless  special  reasons  exist,  such  as  saving  ex- 
pense or  delay  ;  still  it  would,  with  us,  afford  the  preferable  mode 
of  coming  at  such  trial,  and  save  much  of  the  embarrassment  of 
formally  drawing  up  the  issue.^]  The  object  of  a  trial  at  law  thus 
being  solely  "  for  the  purpose  of  informing  the  conscience  of  the 
Court,"  it  results  that  the  verdict  is  not  conclusive  or  binding  on 
the  Court ;  but  the  Chancellor  is  still  at  liberty,  if  he  pleases,  to 
treat  it  as  a  mere  nullity,  and  to  decide  against  it,  or  to  send  it 
back  to  another  Jury.^ 

§  262.  It  is  obvious,  however,  that  this  power  in  the  Chancellor 
to  disregard  the  finding  of  the  Jury  cannot  exist  in  any  of  the 
United  States  where  the  trial  of  facts,  in  cases  in  Equity,  is  secured 


1  2  Daniel's  Chan.  Pract.  1285,  1286, 
and  notes  bv  Perkins  [*  3d  Araer.  Ed.  1085 
- 1088] ;  I  Hoffm.  Ch.  Pr.  502,  503 ;  3  Bl. 
Comni.  452,  453.  [But  where  there  is  no 
conflict  of  evidence  in  regard  to  the  ma- 
terial facts,  it  is  the  duty  of  the  Court  to 
decide  the  question  without  referring-  it  to 
the  Jury.  Dougan  c.  Blocher,  24  Penn. 
State  li.  (12  Harris),  28.  See  also  Heed 
V.  Cline,  9  Gratt.  (Va.)  136;  Smith  v. 
Betty,  11  lb.  752.  As  an  issue  can  be  di- 
rected only  where  the  evidence  creates  a 
doubt,  and  not  as  a  substitute  for  omitted 
evidence,  the  party  claiming  the  issue 
must  first  prove  his  case  by  regular  depo- 
sitions. Adams's  Eq.  376 ;  Clayton  v. 
Meadows,  2  Hare,  29  ;  Whitaker  v.  New- 
man, lb.  302  ;  Hiklreth  t:  Schillenger,  2 
Stockt.  (N.  J.)  19t)  ;  Fisher  v.  Porch,  lb. 
243.]  [*  "  Correct  practice  requires  that 
specific  and  distinct  issues  of  fact  should 
bo  submitted,  that  the  conscience  of  the 
Chancellor  may  be  advised  by  the  special 
verdict,  responsive  to  the  issues  thus 
made."  Hall  v.  Doran,  6  Clarke  (Iowa), 
438.     See  Brewster  v.  Bours,  8  Cal.  501.] 

•^  [*  Peters  v.  Rule,  5  Jur.  N.  S.  61. 
In  Black  v.  Lamb,  1  Beasley  (N.  J.),  123, 
it  is  held  that  "  the  issue  must  be  tried  as  a 
strict  issue  at  law  ;  and  the  rules  of  law  in 
regaril  to  evidence,  its  admissibility,  and 
the  weight  of  it,  govern  the  proceedings, 
except  so  far  as  they  have  been  otherwise 
regulated  by  the  terms  of  the  issue "  out 
of  the  Court  of  Chancery.  But  an  order 
made  by  the  Court  of  Chancery  that  cer- 
tain evidence  shall  be  read  at  the  trial,  is 
binding  on  the  Judge  who  conducts  the 
trial,  even  if  the  evidence  would  be  ex- 


cluded by  rules  of  law.  See  Tingling  v. 
Hesson,  16  Md.  112;  Ringwalt  v.  AH,  36 
Penn.  St.  R.  336.] 

3  Gresley  on  Eq.  Evid.  pp.  498,  527, 
528  ;  Barnes  v.  Stuart,  1  Y.  &  C.  139,  per 
Alderson,  B.  [It  rests  in  the  discretion  of 
the  Chancellor  to  award  a  feigned  issue  or 
not ;  and  the  verdict  of  the  Jury  upon  a 
feigned  issue  is  not  conclusive  upon  the 
Chancellor.  He  may  have  the  case  tried 
again  and  again,  and  make  his  decree  con- 
trary to  such  verdicts  as  are  not  agreeable 
to  his  sense  of  justice.  United  States  v. 
Samperyac,  1  Hempst.  118;  Ward  v.  Hill, 
4  Gray,  595 ;  Lansing  v.  Russell,  13  Barb. 
510;  Holcomb's  Executors  v.  New  Hope 
D.  B.  Co.,  1  Stockt.  (N.  J.)  457  ;  Hoffman 
V.  Smith,  1  Md.  475 ;  Sibert  v.  McAvoy, 
15  111.  106;  Williams  v  Bishop,  lb.  553; 
Lapreese  v.  Falls,  7  Ind.  692 ;  Waterman 
V.  Button,  5  Wis.  413;  Walker  v.  Sedg- 
wick, 5  Cal.  192.]  [*  And  after  a  Court 
of  Chancery  has  referred  certain  issues  to 
a  court  of  law  for  trial  by  Jury,  and  the 
Jury  has  decided  some  of  them  and  been 
rmable  to  agree  upon  others,  the  cause 
may  then  be  decided  by  the  Court  of 
Chancery  upon  the  whole  record,  includ- 
ing the  report  of  the  trial  at  law,  provided 
such  Court  finds  itself  able  to  dispose  of  the 
cause  satisfactorily  upon  all  the  evidence 
before  it.  Adams  v.  Soule,  33  Vt.  538; 
Converse  v.  Hartley,  31  Conn.  380.  That 
the  evidence  introduced  on  the  trial  of  an 
issue  sent  to  the  Jury  was  not  returned 
with  the  verdict  to  the  Equity  side  of  the 
Court  is  no  sufficient  reason  why  the 
Court  should  not  enter  a  decree.  Say- 
lor's  Appeal,  39  Penn.  St.  497.] 


216  LAW   OF   EVIDENCE  IN  EQUITY.  [PART  VI. 

to  the  parties  by  constitutional  or  statute  law  as  a  matter  of  right.^ 
The  law,  in  granting  such  right,  where  it  is  seasonably  asserted 
by  the  party,  takes  away  from  the  Chancellor  the  authority  to  de- 
termine any  question  of  fact  material  to  the  decision,  and  refers  it 
exclusively  to  the  Jury  ;  the  Judge  retaining  only  the  power  to 
apply  the  law  of  Equity  to  the  facts  found  by  the  Jury,  in  the  same 
manner  and  to  the  same  extent  as  at  Common  Law.  It  is  only 
where  no  such  right  of  the  party  is  recognized  by  law,  and  where 
the  resort  to  a  Jury  is  left  to  the  discretion  of  the  Judge,  in  aid  of 
his  own  judgment,  that  he  is  at  liberty  to  disregard  the  finding  of 
the  Jury,  or  to  determine  the  facts  for  himself. 

§  263.  That  the  verdict  of  the  Jury  may  be  conclusive,  even  in 
the  national  tribunals,  may  be  inferred  from  the  exposition  which 
has  been  given  by  the  Supreme  Court  to  that  provision  of  the  Con- 
stitution by  which  the  trial  by  Jury  is  secured.  Thus,  in  the  case 
in  Louisiana,  above  cited,^  which  was  instituted  in  the  District 
Court  of  the  United  States,  according  to  the  form  of  proceeding  in 
the  Courts  of  that  State,  which  is  uniform  in  all  cases,  the  cause 
was  tried  by  a  special  Jury,  in  the  ordinary  manner,  and  was 
taken  to  the  Supreme  Court,  by  writ  of  error,  founded  on  the  re- 
fusal of  the  District  Judge  to  order  that  the  evidence  be  taken 
down  in  writing,  according  to  the  course  of  practice  in  that  State, 
which  is  required  by  law,  to  enable  the  appellate  Court  to  exercise 
the  power  of  granting  a  new  trial,  and  of  reversing  the  judgment 
of  the  inferior  Court.  But  the  exception  was  overruled,  on  the 
gi-ound  that  the  error  complained  of  was  in  a  matter  of  practice 
only,  which  could  not  regularly  be  assigned  for  error ;  and  that 
by  the  Constitution ,3  "  No  fact,  once  tried  by  a  Jury,  shall  be  oth- 
erwise re-examined  in  any  Court  of  the  United  States,  than  ac- 
cording to  the  rules  of  the  Common  Law  "  ;  and  that  no  power 
was  given  to  the  Supreme  Court,  to  reverse  a  judgment  for  any 
error  in  the  verdict  of  the  Jury  at  the  trial.  It  seems,  therefore, 
that  where  the  verdict  of  the  Jury,  in  the  Courts  of  the  United 
States,  cannot  be  set  aside  for  some  cause  known  in  the  rules  for 

1    r*    In  Fr.itiklin  v.  Greene,  2  Allen,  to  submit  to  a  Jury  all  such  material  facts 

522  ;  Chuiiniiin,  .J.,  s:ivs,  in  this  Common-  as  are  proper  to  be  decided  by  them  ;  and 

wealth,   the   ri-lit  of  "trial  hv  Jury  is  se-  when   a  verdict  is  rendered,  and   not  set 

cured   by   the  "Constitution.  "    In   suits   in  aside  for  i^ood  <-ause  shown,  it  will  be  rc- 

Equitv  the  issues  do  not  ^row  out  of  the  garded  as  settling  the  facts  conclusively.] 
pleadings  as  in  suits  at  law,  but  arc  framed         ^    Parsons    v.    Bedford,   siipni.    §    'JOO. 

by  thctourt;  yet  in  framing  the   issues  And  see  Story  on  thr  Constitution,  Vol. 

the  Court  will  have  regard  to  the  constitu-  3,  iip.  (ViG-fij-^,  §§  1754-  17ti6. 
tional  provision,  and  will  allow  the  parties         **  Const.  U.  iS.  Amendments,  art.  7. 


PART  VI.] 


PRELIMINARY   OBSERVATIONS. 


217 


granting  new  trials  at  Common  Law,  it  is  conclusive  upon  the 
parties  and  upon  the  Court ;  and  this,  whether  the  verdict  were 
rendered  upon  a  feigned  issue  sent  out  of  Chancery  to  the  Court 
of  Common  Law  ;  or  upon  an  issue  framed  upon  a  bill  in  Equity 
in  a  Court  having  jurisdiction  both  in  Equity  and  at  Common  Law ; 
or  in  a  civil  suit  at  Common  Law. 

§  264.  In  several  of  the  individual  States^  the  right  of  trial  by 
Jury  is  secured,  either  in  their  constitutions  or  statutes,  in  express 
terms.  Thus,  in  the  constitution  of  Maine,  it  is  provided,  that 
"  Li  all  civil  suits,  and  in  all  controversies  concerning  property, 
the  parties  shall  have  a  right  to  a  trial  by  Jury,  except  in  cases 
where  it  has  heretofore  been  otherwise  practised."  ^  A  similar 
provision,  in  nearly  the  same  words,  is  found  in  the  constitutions 
of  New  Hampshire  and  Massachusetts  ;  ^  and  this  has  been  con- 
strued to  give  the  right  to  a  trial  of  all  material  facts  by  the 
Jury,  even  in  cases  in  Equity .^     In  the  constitution  of  Yermont, 


1  Maine,  Const,  art.  1,  §  20.  (Adopted 
in  1820.) 

2  Neio  Hampshire,  Const.  (1792),  Part  1, 
art.  20;  Mnssuc/msetis.  Cont-t.  (1780),  Part. 
I,  art.  15.  In  tlie  constitution  of  Massa- 
chusetts there  is  an  exception  of  "  cases  on 
the  high  seas,  and  such  as  relate  to  mar- 
iners' waL!:cs,"  should  "  tlie  legislatui'e 
hereafter  find  it  necessar}-  to  alter  it." 

^  Such  is  understood  to  be  the  opinion 
of  the  learned  Judges,  in  the  case  of  the 
Charles  River  Bridge,  7  Pick.  344,  .368, 
369,  though  a  formal  adjudication  of  the 
point  was  waived,  as  unnecessary  in  that 
cause.  The  langiu\ge  was  as  follows : 
"  The  article  relied  on  is  in  no  ambiguous 
language ;  nothing  could  more  explicitly 
declare  the  intention  of  the  people,  that, 
with  the  exceptions  therein  contained,  the 
right  to  trial  by  Jury  should  never  be  in- 
vaded. Now  the  case  presented  by  this 
bill  is  a  controversy  concerning  property, 
and  it  is  also  a  suit  between  parties ;  so 
that,  unless  it  is  a  case  in  which,  at  the 
time  of  the  adoption  of  the  constitution,  a 
different  mode  of  trial  could  be  said  to 
have  been  practised,  it  is  most  clearly  in- 
cluded in  the  article.  But  we  wish  not  to 
decide  this  question  now,  believing  it  not 
to  be  necessary,  and  that  further  time 
might  enable  us  to  show  that  the  case 
comes  within  the  practice.  We  find  that 
the  Colonial  Legislatui-e,  in  the  year  168.5, 
vested  in  the  County  Courts  as  ample  ju- 
risdiction in  matters  of  equity,  as  exists 
in  the  Courts  of  Chancery  in  England. 
That  statute  continued  in  force  until  the 
grant  of  the  provincial  charter  in  1691,  by 


which  the  colonial  statute  was  probably 
considered  to  be  repealed.  After  the  char- 
ter in  1 692,  the  whole  chancery  power  was 
vested  in  tlie  governor  and  eight  of  the 
council,  with  a  power  to  delegate  it  to  a 
chancellor  to  be  appointed  by  the  gover- 
nor. The  next  year  the  legislature,  de- 
claring that  this  mode  of  administering 
the  power  was  found  in  practice  to  be  in- 
convenient, repealed  the  law,  and  ti-ansfer- 
red  the  power  to  three  commissioners ;  and, 
in  the  succeeding  year,  this  tribunal  was 
superseded,  and  a  high  Court  of  Chancery 
was  established.  We  have  it  from  tradi- 
tion, and  I  have  seen  it  somewhere  in  his- 
tory, that  these  several  acts  became  null 
and  void  by  reason  of  the  negative  of  the 
king,  which  was  exercised  according  to 
the  charter,  within  three  years  after  their 
enactment ;  they  were,  however,  in  force, 
according  to  the  provisions  of  the  charter, 
until  the  veto  of  the  king  was  made 
known  to  the  constituted  authorities  here. 
Now,  whether  the  framers  of  the  constitu- 
tion, and  the  people,  had  reference  to 
those  former  chancery  tribunals,  when 
they  adopted  the  exception  to  the  general 
provision  in  the  fifteenth  article,  may  ad- 
mit of  question  ;  we  are  inclined  to  think, 
however,  that  the  word  '  heretofore,'  in  the 
exception,  could  hardly  be  applicable  to  a 
practice  which  had  ceased  to  exist  nearly 
a  century  before  the  constitution  was 
adopted.  In  regard  to  probate  cases,  and 
suits  for  redemption  of  mortgages,  the 
practice  of  trying  facts  by  the  Court  in- 
stead of  the  Jury,  had  continued  down  to 
the  adoption  of  the  constitution.     But  we 


218  LAW   OF    EVIDENCE   IN   EQUITY.  [PART  VI 

it  is  declared,  that  "  when  an  issue  in  fact,  proper  for  the  cogni- 
zance of  a  Jury,  is  joined  in  a  Court  of  Law,  the  parties  have 
a  right  to  a  trial  by  Jury,  which  ought  to  be  held  sacred."  ^ 
Whether  this  provision  has  ever  been  adjudged  to  extend  to  pro- 
ceedings in  Equity,  subsequent  to  the  creation  of  a  Court  of  Chan- 
cery in  that  State,  we  are  not  informed.  In  the  constitution  of 
Virginia,  the  language  is  more  general ;  it  being  declared,  that 
"  in  controversies  respecting  property,  and  suits  between  man  and 
man,  the  ancient  trial  by  Jury  of  twelve  men  is  preferable  to  any 
otlier,  and  ought  to  be  held  sacred."  ^  In  that  of  California,  it  is 
provided,  that  "  the  right  of  trial  by  Jury  shall  be  secured  to  all, 
and  remain  inviolate  forever  ;  but  a  Jury  trial  may  be  waived  by 
the  parties,  in  all  civil  cases,  in  the  manner  to  be  prescribed  by 
law."  ^  By  the  constitution  of  New  York,  it  is  to  remain  inviolate 
forever,  "  in  all  cases  in  which  it  has  been  heretofore  used  "  ;  un- 
less waived  in  civil  cases  by  the  parties.*  But  by  the  force  of  sub- 
sequent provisions  of  the  Code  of  Procedure,  abolishing  the 
distinction  between  proceedings  in  Equity  and  at  Law,  it  is  con- 
ceived that  the  facts,  in  all  cases,  may  be  tried  by  Jury,  if  de- 
manded.^ Undoubtedly  they  may  be  in  Louisiana,  where  this 
right  is  granted  generally,  in  all  cases,  if  required  by  either  party  ;^ 
and  probably,  also,  in  those  other  States  where  the  sole  remedy  is 
by  petition  and  answer,  no  distinction  existing  between  remedies 

say  a^ain,  that  we  do  not  wish  to  decide  go  to  the  Jury  is  preserved,  if  he  is  al- 
this  question  now,  any  further  than  to  do-  lowed  that  course  in  re<rard  to  all  such 
Clare,  that  a  reasonable  construction  of  facts  as  have  a  bearint,^  upon  the  issue  for 
the  fifteenth  article  does  not  require  that  trial."  [Ward  v.  Hill,  4  Gray,  595.]  In 
a  suit  in  Chancery  shall  be  tried  just  as  a  New  Hampshire,  the  question,  whether  the 
suit  at  common  'law  would  be,  and  that  defendant,  in  a  bill  in  equity,  has  a  consti- 
there  is  no  necessity  that  the  whole  case  tutional  ri^lit  to  a  trial  by  Jury,  of  the  ma- 
shall  be  put  to  the  Jurv.  The  most  that  terial  focts  in  issue,  was  a  point  directly  in 
can  be  made  of  the  article  is,  that  all  eon-  jud-,'nient,  and  was  decided  in  the  affirm- 
trovertcd  facts  deemed  essential  to  the  fair  ativo.  Marston  v.  Brackett,  9  N.  Hamp. 
and  full  trial  of  the  case,  shall  be  passed  336,  349.  And  see  N.  Hamp.  Rev.  Stat, 
upon  bv  the  Jurv,  if  the  parties,  or  either  1842,  ch.  171,  §  8  ;  [Tappan  v.  Evan.s,  U 
of  them,  require-  it.  And  whether  the  N.  Hamp.  334 ;  Dodge  f.  Griswold,  12  lb. 
facts  proposed  to  be  so  tried  are  essential  573.] 

or  not,  must  of  necessity  be  determined  bv  ^    Vermont,  Const.  (1793),  eh.  1,  art.  12. 

the    Court.      There   may   be   many    facts  ^    Vmjinia,  Const.  (1796,  1851),  Bill  of 

statcfi  in  a  bill  and  denied  in  an  answer,  Rights,  §  11. 

and    also   facts    alleged    in    the    answer,  ^   C'llitornia,  Const.   (1849),  art.  1,  §  3, 

which  are  whollv  immaterial  to  the  merits  Stat.  1850,  ch.  142,  §§  136,  160. 

of  the  case,  aiKTsuch  facts  the  Court  mav  *  Nw  York,  Const.  (1846),  art.  1,  §  2. 

refuse  to  put  to  the  Jurv  ;   just  as   in  aii  ^  N.  Y.  Code  .of  rroccdure,  §§  62,  208, 

action  at  common  law,  if  a  i)arty  offers  to  221,  225   [252^266,  270]  ;    Lyon  j;.  Ayrcs, 

prove  facts  which  are  irrelevant,  the  Court  1  Code  Rep.  N.  S.  257. 

may  reject  the  proof;  and  as  immaterial  <*  Louisiana,  Code  of  Practice,    §§  494, 

Issues,  even  after  verdict,  may  lie  rejected  495;    Trriis,  Const.  (1845),  art.  4,  §§  16, 

as  nugatory.     The  right  of  "the  party  to  18,  19;  Id.  art.  1.  §  12. 


PART  Yl]  PRELIMINARY   OBSERVATIONS.  219 

in  Equity  and  at  Law  ;  as  in  the  case  in  California  and  Georgia, 
and  in  the  other  States  before  mentioned.  In  Delaware,  it  is  re- 
quired by  the  constitution,  that  "  trial  by  Jury  shall  be  as  hereto- 
fore "  ;  but  it  seems  to  be  extended,  by  statute,  to  all  cases.^  In 
the  States  of  Rhode  Island,  Connecticut,  New  Jersey,  Florida, 
Mississippi,  Tennessee,  Kentucky,  Ohio,  Alabama,  Missouri,  Ar- 
kansas, Texas,  and  Iowa,  the  constitutional  provision  is  simply, 
that  "  the  right  of  trial  by  Jury  shall  remain  inviolate  "  ;  the 
words  being  in  each  constitution  nearly  the  same,  and  without 
qualification.^  The  same  provision  exists  in  the  constitution  of 
Indiana,  where  it  is  expressly  extended  to  all  civil  cases ;  in  those 
of  Maryland,  Illinois,  and  Wisconsin,  where  it  is  applied  only  to 
"  all  cases  at  law  "  ;  or  to.  "  civil  proceedings  in  Courts  of  Law  "  ; 
and  in  those  of  South  Carolina  and  Georgia,  where  it  is  qualified 
by  the  addition  of  the  words  "  as  heretofore  used  in  this  State." 
It  is  qualified  in  a  similar  manner  in  the  constitution  of  Pennsyl- 
vania.3  In  the  constitution  of  Michigan  it  is  provided,  that  "  the 
right  of  trial  by  Jury  shall  remain,  but  shall  be  deemed  to  be 
waived  in  all  civil  cases,  unless  demanded  by  one  of  the  parties,  in 
such  manner  as  shall  be  prescribed  by  law  "  ;  —  a  provision  appar- 
ently copied  from  that  in  New  York,  with  a  studious  omission  of 
the  words  "  in  all  cases  in  which  it  has  been  heretofore  used."  * 

§  265.  In  other  States,  as  well  as  in  some  of  those  above  men- 
tioned, the  right  of  trial  by  Jury,  in  all  civil  cases,  without  excep- 
tion, is  further  secured  by  statute.  Thus,  in  the  Code  of  Iowa,  it 
is  enacted,  that  issues  of  fact  shall  be  tried  by  the  Court,  unless 

1  Delaware,  Const.   (1831),  art.  1,   §  4.  sas,  Const.    (1836),   art.    2,    §6;    Texas, 

In  the  constitution  of  this  State,  in  1776,  Const.   (1845),  art.  1,  §  12;    Iowa,  Const, 

it  was  declared,    •'  That  trial,  by  Jury,  of  (1844),  art.  2,  §  9. 

facts,  where  thev  arise,  is  one  of  the  great-  ^  Indiana,  Const.  (1816,  18.51),  art.  1, 
est  securities  o"f  the  lives,  liberties,  and  §  20;  Mart/land,  Const.  (1S51),  art.  10, 
estates  of  the  people."  Declaration  of  §  4;  Illinois,  Const.  (1818,  1847),  art.  13, 
]{i<,^hts,  art.  13.  And  accordingly,  in  the  §  6  ;  Wisconsin,  Const.  (1848),  art.  1,  §  5  ; 
Revised  Statutes  of  1852,  ch.  95,  §  1,  it  South  Carolina,  Const.  (1790),  art.  9,  §  6 ; 
is  enacted,  that  "where  matters  of  fact,  Georgia,  Const.  (1798,  1839),  art.  4,  §5; 
proper  to  be  tried  by  Jury,  shall  arise  in  Pennsi/lvania,  Const.  (1838),  art.  9,  §  6. 
anv  cause  depending  in  Chancery,  the  [Causes  in  Equity  are  not  within  the  pro- 
Chancellor  shall  order  such  tacts  to  trial  vision  of  the  State  constitution  requiring 
by  issues  at  the  bar  of  the  Superior  all  civil  cases  to  be  tried  in  the  county  in 
Court."  which  the  defendant   resides.      Jordan  v. 

■^  Rhode  Island,   Const.    (1842),    art.   1,  Jordan,  12  Geo.  77.     Where  titles  to  prop- 

§  15;    ConnectirAit,  Const.    (1818),    art.  1,  erty  are  in  dispute  before  a  Court  of  Chan- 

§  21;    New  Jersey,  Const.   (1844),  art.  1,  eery,  a  Jury  alone  is  competent  to  deter- 

§  7;    Florida,  Const.   (1838),  art.  1,  §  6;  mine  the  real  truth  of  the  fact.     McDou- 

Mississijipi,    Const.    (1817,    183-i),    art.   1,  gald  y.  Dougherty,  11  Geo.  570 ;    Mounce 

§  28;    Tennessee,  Const.  (179P.,  1835),  art.  v.  Byars,  lb.  180;  BrowTi  r.  Burke,  22  lb. 

1,  §6;    Kentucky,  Const.   (1799),  art.   13,  574.] 

§  8;   Ohio,  Const.  (18o2,  1851),  art.  1,  §5;  *  Michigan,  Const  (1836,  1850),  art.  6, 

Alabama,  Const.  (1819),  art.  1,  §  28 ;  Mis-  §  27. 
souri,  Const.   (1821),  art.  11,  §8;   Arlcan- 


220  LAW    OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

one  of  the  parties  require  a  Jury.^  And  in  North  Carolina,  it  is 
made  "  the  duty  of  the  Court,  to  direct  the  trial  of  such  issues  as 
to  the  Court  may  appear  necessary,  according  to  the  rules  and 
practice  in  Chancery,  in  such  cases."  ^  In  Georgia,  the  Superior 
and  Inferior  Courts,  which  arc  Courts  of  general  jurisdiction  in 
civil  cases,  hoth  at  law  and  in  Equity,  have  "  full  power  and  au- 
thority "  to  hear  and  determine  all  causes  in  their  respective  trihu- 
nals  by  Jury  ;  ^  and  the  course  of  such  trials,  in  cases  in  Equity,  is 
provided  for  by  the  general  rules  in  Equity.* 

§  266.  In  view  of  these  express  declarations  respecting  the 
great  value  of  the  trial  by  Jury,  and  of  the  sacredness  of  the  right, 
and  the  care  taken  for  its  preservation,  no  one  will  deny  that  it  is 
a  mode  of  trial  highly  favored,  and  intimately  connected  with  the 
general  welfare.  And  therefore  it  may  deserve  to  be  considered, 
whether  in  those  States  where  Courts  of  Equity  are  "  authorized 
and  empowered,"  or  "  permitted,"  to  direct  issues  to  the  Jury  for 
the  trial  of  material  facts,  it  be  not  their  duty  so  to  do,  and 
whether  the  parties  may  not  demand  it  of  right ;  unless,  perhaps, 
in  those  cases  where  the  statute  expressly  leaves  it  in  the  discretion 
of  the  Court ;  it  being  the  well-known  rule  of  law,  that  words  of 
permission,  in  a  statute,  if  tending  to  promote  the  public  benefit, 
or  involvhig  the  rights  of  third  persons,  are  always  held  to  be  com- 
pulsory.^ Such  permission  and  anthority  to  direct  a  trial  by  Jury, 
"  if  tliere  be  an  issue  as  to  matter  of  fact,  wliicli  shall  render  the 
intervention  of  a  Jury  necessary,"  is  found  in  the  statute  of  Ar- 
kansas, and  is  copied,  in  nearly  the  same  words,  in  that  of  Wiscon- 
sin.^ In  Alabama,  the  Courts,  sitting  in  chancery,  "  may  direct 
an  issue  or  fact  to  be  tried  whenever  they  judge  it  necessary."  ^ 
In  Virginia,  "  any  Court,  wherein  a  chancery  case  is  pending,  may 

1  Iowa,  Code  of  1851,  §  1772.  Atk.  164.     And  see  Ncwlmrp  Turnp.  Co. 

2  North  Carolina,  Rev.  Stat.  1836,  "Vol.  v.  Miller,  5  .Johns.    Ch.   11.   113;    Hex  v. 
1,  ch.  32,  §  4.  Com'rs  of  Floekwold,   2  Chitty,  R.  2.51  ; 

3  liotchk.  Dig.  p.  ,')29,  §  149  ;    1  Cobb's  Dwarris   on    Stat.    712;    Re.x   v.   Derby, 
Dig.  p.  463.  Skin.   370;    1    Kent,    Comm.    [467|,   517; 

*  liotelik.  Dig.  p.  9.53,  954,  Reg.  1,  6.  Simonton,  ex  parte,  9  Port.  390;  Malcolm 
6  So  licld  in  Rex  c.  Mayor,  &(;.,  of  Hast-  i'.  Roger.s,  5  Cowcn,  188  ;  1  Pet.  64.  [So, 
ings,  1  D.  &  R.  148;  where  the  words  where  the  statute  provides  that  tiie  respon- 
■\vcrc  "mat/  hare  power  to  have  and  hold  a  dent  in  chancery  "may  be  allowed  to  file 
Court  of  Record,"  &c.  So,  where  the  his  answer  at  any  time  before  final  dc- 
churchwardens  and  overseers  shall  have  cree,"  the  word  mm/  was  held  to  be  impcr- 
power  and  anthoriti/  to  make  a  rate  to  reim-  ative,  and  that  the  Court  were  without  dis- 
burse the  constaiile.  Rex  r.  Bark)w,  2  crction  in  the  matter.  Bean  v.  Simmons, 
Salk.  609.     .So,  where  the  Chancellor  mai/  9  Graft.  (Va.),  389.] 

grant  a  commission  of  bankruptcy.    Black-  ''Arkansas,    Rev.    Stat.    1837,    ch.   23, 

well's  ca.se,  1  Verm.  ir)2.     So,  wliere  the  §  64;     Wisconsin,  Rev.  Stat.  1849,  ch.  84, 

trustees  of  a  public  charity,  under  the  will  §  31. 

of  the  founder  naiij  remove  u  pensioner,  *  Toulm.  Dig.  487  ;  English's  Dig.  ch. 

for  certain  causes.     Att'y-Ucn.  v.  Lock,  3  28,  §  62. 


PART  VI.]  PRELIMINARY   OBSERVATIONS.  221 

direct  an  issue  to  be  tried  in  such  Court,  or  in  any  circuit,  county, 
or  corporation  Court."  ^  The  precise  construction  of  these  provis- 
ions, and  whether  they  would  justify  the  Court  in  refusing  to 
grant  a  trial  of  material  facts  by  Jury,  when  claimed  by  the  par- 
ties, yet  remains  to  be  settled.  Probably  few  Judges,  at  the 
present  day,  in  any  State  where  the  law  is  not  perfectly  clear 
against  it,  would  venture  to  deny  such  an  application,  in  a  case 
proper  for  a  Jury,  nor  to  disregard  the  verdict,  if  fairly  rendered, 
upon  a  legal  trial.  And  in  proportion  to  the  duty  of  directing  an 
issue  to  the  Jury,  is  the  obligation  on  the  Judge  to  be  governed  by 
their  verdict. 

§  267.  Thus  it  appears,  that  the  regular  course  of  Chancery 
proceedings,  as  heretofore  used  in  England,  is  not  strictly  followed 
in  any  State  of  the  Union.  In  some  States,  the  proceedings  in 
Chancery  are  by  bill  and  answer,  the  common-law  remedy  being 
by  writ,  as  before  ;  in  others,  there  is  but  one,  and  that  a  brief 
form  of  remedy,  pursued  alike  in  all  cases.  In  some,  the  parties 
may  examine  each  other  as  witnesses  ;  in  others,  this  is  not  per- 
mitted. In  some,  the  witnesses  may  be  examined  in  Court,  vivd 
voce,  as  at  law  ;  in  others,  the  testimony  is  always  taken  in  writ- 
ing, either  in  open  Court,  by  the  Clerk  or  the  Judge,  or  in  depo- 
sitions, after  the  former  method.  In  the  latter  case,  however, 
there  is  this  further  diversity  of  practice,  that,  in  some  States,  the 
parties  may  examine  and  cross-examine  the  witnesses,  ore  tenus, 
before  the  magistrate  or  commissioner  ;  in  others,  they  may  only 
propound  questions  in  writing,  through  the  commissioner ;  in 
others,  they  may  only  be  present  during  the  examination,  and 
take  notes  of  the  testimony,  but  without  speaking  ;  while  in  oth- 
ers, the  parties  are  still  excluded  from  the  examination.  In  some 
of  the  States,  also,  it  is  required  that  all  matters  of  fact,  in  all 
cases,  shall  be  tried  by  the  Jury  ;  in  others,  it  is  at  the  option  of 
the  parties  ;  in  others,  it  is  apparently  left  in  the  discretion  of  the 
Court ;  but  with  plain  intimations  that  it  ought  not  to  be  refused, 
unless  for  good  cause.  Other  changes  in  the  course  of  Chancery 
proceedings  might  be  mentioned  ;  but  these  will  suffice  to  show 
how  difficult  it  is,  if  not  impossible,  to  prepare  a  complete  system 
of  the  law  of  evidence  in  Equity,  adapted  alike  to  all  the  States  in 
the  Union.  An  approximation  to  this  result  is  all  that  the  author 
can  hope  to  attain. 

1  Virginia,  Kev.  Code,  1849,  ch.  177,  §  4,  and  note. 


222  LAW    OF   EVIDENCE  IN   EQUITY.  [PART  YI. 


NOTE. 

During  the  composition  of  this  volume,  the  Practice  and  Course  of  proceed- 
ing in  the  High  Court  of  Chancery  in  England  have  been  amended  and  mate- 
rially reformed,  by  Stat.  15  &  16  Vict,  c  86  (July  1,  1852),  and  by  the  Orders 
made  by  the  Lord  Chancellor,  pursuant  to  the  provisions  of  that  statute ;  some 
account  of  the  leading  features  of  which  will  not  be  unacceptable  to  the  profes- 
sion in  the  United  States,  and  is  therefore  subjoined. 

The  practice  of  engrossing  bills  and  claims  on  parchment,  and  of  issuing  a  sub- 
poena to  appear  and  answer,  is  abolished ;  instead  of  which  the  plaintiff  files  a 
printed  bill  or  claim,  and  serves  a  printed  copy  on  the  defendant.  Stat.  15  &  16 
Vict.  c.  86,  §§  1-4.  Of  these  printed  bills  or  claims,  the  plaintiff  is  required  to 
deliver  to  the  defendant  or  his  solicitor  such  a  number  as  he  may  have  occasion 
for,  not  exceeding  ten,  at  a  halfpenny  each  folio.  Id.  §  7.  Orders,  Aug.  7, 
1852.     Ord.  5,  6. 

The  copy  of  the  bill  or  claim  filed  is  to  be  interleaved;  and  where  by  the  for- 
mer practice,  an  amendment  may  be  made,  without  a  new  engrossment,  it  may 
now  be  made  by  written  alterations  on  the  printed  bill  or  claim,  or  on  the  inter- 
leaves ;  an  amended  copy  being  served  as  before.     Stat.  Sup.  §  8.     Ord.  7,  9,  10. 

Every  bill  must  contain,  as  concisely  as  may  be,  a  narrative  of  the  material 
facts  and  circumstances  on  which  the  plaintiff  relies ;  divided  into  paragraphs 
and  numbered  consecutively  ;  each  paragraph  containing,  as  nearly  as  may  be,  a 
distinct  statement  or  allegation  ;  and  must  pray  for  specific  and  general  relief; 
but  must  not  contain  interrogatories  to  the  defendant.  Stat.  Sup.  §  10.  A 
brief  form  for  a  bill,  pursuant  to  this  section,  is  appended  to  the  new  Orders. 
Ord.  14. 

If  the  plaintiff  requires  an  answer  from  the  defendant,  he  is  to  file  interroga- 
tories in  the  Record  Office,  for  the  examination  of  the  defendant,  (serving  a  copy 
on  him  or  his  solicitor,)  within  the  time  limited  in  the  Orders.  Stat.  Sup.  §  12. 
Ord.  15-20. 

Tlie  defendant's  answer  to  the  bill  may  contain  not  only  his  answers  to  the 
plaintiff's  interrogatories,  filed  as  above,  but  any  other  statements  he  may  be  ad- 
vised to  set  forth  by  way  of  defence ;  to  be  divided  into  paragraphs  and  num- 
bered, as  is  required  in  the  bill.  Stat.  Sup.  §  14.  A  brief  form  of  such  answer 
is  also  appended  to  the  Orders.     Ord.  21. 

The  practice  of  excepting  to  bills,  answers,  and  other  proceedings,  for  imperti- 
nence, is  abolished;  but  the  party  may  be  punished  in  costs.     Stat.  Sup.  §  17. 

The  Court  may  order  the  defendant  to  produce,  under  oath,  such  documents 
in  his  possession  or  power  relating  to  matters  in  question  in  the  suit,  as  the  Court 
sliall  think  right ;  and  may  deal  with  them,  when  produced,  as  may  appear  just. 
Stat.  Sup.  §  18. 


PART  VI.]  NOTE.  223 

The  defendant,  after  answering  the  bill  or  claim,  if  an  answer  is  required,  may 
either  file  a  cross-bill  of  discovery,  or  may  examine  the  plaintiff  upon  interroga- 
tories, filed  in  the  Record  Office,  and  having  a  concise  statement  prefixed  to 
them  of  the  subjects  on  which  a  discovery  is  sought ;  which,  being  duly  served, 
the  plaintiff  is  bound  to  answer  in  like  manner  as  if  the  interrogatories  were  con- 
tained in  a  bill  of  discovery.  And  the  practice  of  the  Court  in  regard  to  except- 
ing to  answers  for  insufficiency  and  for  scandal,  is  to  apply  to  the  answers  of  such 
interrogatories  ;  the  Court,  in  determining  their  materiality  or  relevancy,  to  have 
regard  to  the  bill,  and  the  defendant's  answer,  if  any,  to  the  bill  or  to  interroga- 
tories.    Stat.  Sup.  §  19. 

After  answer,  if  an  answer  is  required,  or  otherwise,  at  any  time,  the  Court, 
upon  application  of  the  defendant,  may  order  the  production  of  documents  by 
the  plaintiff,  in  like  manner  as  above  stated  in  §  18.     Stat.  Sup.  §  20. 

If  the  defendant  shall  not  have  been  required  to  answer,  and  shall  not  have 
answered  the  plaintiff's  bill,  he  shall  be  considered  to  have  traversed  the  case 
made  by  the  bill.  Stat.  Sup.  §  26.  But  a  replication  is  still  to  be  filed. 
Ord.  28. 

The  old  mode  of  examining  witnesses  is  no  longer  to  be  observed,  except  in 
cases  where  it  may  be  specially  ordered  by  the  Court,  as  varied  by  the  new  Gen- 
eral Orders,  or  by  special  order  in  any  particular  case.     Stat.  Sup.  §  28. 

The  plaintiff,  within  seven  days  after  a  suit  commenced  by  bill  is  at  issue,  may 
give  notice  to  the  defendant  that  he  desires  that  the  evidence  in  the  cause  be 
taken  orally,  or  upon  affidavit,  as  the  case  may  be ;  and  if  upon  affidavit,  and  the 
defendant  shall  not,  within  fourteen  days  more,  give  notice  to  the  plaintiff  that  he 
desires  the  evidence  to  be  oral,  both  parties  may  verify  their  cases  by  affidavit. 
Stat.  Sup.  §  29,  Ord.  31. 

When  a  party  desires  that  the  evidence  should  be  adduced  orally,  and  gives 
notice  as  above,  it  shall  be  so  taken  ;  provided,  that  where  the  desire  proceeds 
from  a  party  not  having  sufficient  interest  in  the  matters  in  question,  the  Court 
may  make  such  order  as  shall  be  just.     Stat.  Sup.  30. 

Witnesses  to  be  examined  orally,  as  above,  are  to  be  examined  by  or  before 
one  of  the  examiners  of  the  Court,  or  by  one  specially  appointed ;  who  is  to  be 
furnished  with  a  copy  of  the  bill  and  answer.  The  examination  is  to  be  in  pres- 
ence of  the  parties,  their  counsel,  solicitors,  or  agents;  the  examination,  cross- 
examination,  and  re-examination  to  be  conducted  as  in  the  Courts  of  Common 
Law  in  regard  to  witnesses  about  to  go  abroad,  and  not  to  be  present  at  the  trial. 
The  depositions  are  to  be  taken  down  by  the  examiner,  in  the  form  of  narrative, 
and  not  ordinarily  by  question  and  answer ;  and  to  be  signed  by  the  witness,  or 
by  the  examiner,  if  he  refuses.  But  the  examiner  may  put  down  any  particular 
question  and  answer,  if  he  sees  special  cause ;  and  may  state  any  special  matter 
to  the  Court.  And  if  any  question  is  objected  to,  he  is  to  note  the  objection,  and 
state  his  opinion  thereon  to  the  counsel  or  party,  and  refer  to  such  statement,  on 
the  face  of  the  deposition ;  but  he  has  no  power  to  decide  on  the  materiality  or 
relevancy  of  any  question ;  but  that  subject  is  to  be  dealt  with  in  costs,  by  the 
Court.     Id.  §§31,  32. 

Though  evidence  be  elected  to  be  taken  orally,  yet  affidavits  by  particular  wit- 
nesses, or  to  particular  facts,  may  be  used  by  consent,  or  by  leave  of  the  Court, 
granted  on  notice.     Id.  §  36. 


224  LAW   OF  EVIDENCE  IN  EQUITY.  [PART  VI. 

Any  cestui  que  trust  may  have  a  decree  for  the  execution  of  the  trusts,  without 
serving  any  other  cestui  que  trust.  Any  executor,  administrator,  or  trustee  may 
have  a  decree  against  any  one  legatee,  next  of  kin,  or  cestui  que  trust.  And 
trustees,  in  all  suits  concerning  the  trust  property,  shall  represent  the  persons 
beneficially  interested  therein.  But  in  all  such  cases,  except  the  last,  the  persons 
heretofore  made  parties  are  to  be  served  with  notice  of  the  decree,  with  liberty 
to  attend  the  subsequent  proceedings  under  it,  and  may  apply  to  add  to  it ;  and 
the  Court  has  the  power  of  requiring  parties  to  be  called  in.  Id.  §  42.  The  for- 
mer practice  of  setting  down  a  cause  merely  on  the  objection  of  the  want  of  par- 
ties, is  abolished.     Id.  §  43. 

If  a  person  interested  in  the  suit  dies,  and  has  no  legal  personal  representative, 
the  Court  may  proceed  without  one,  or  may  appoint  some  person  to  represent  the 
estate  in  that  suit :  and  the  estate  shall  be  bound  thereby.     Id.  §  44. 

No  suit  is  to  be  dismissed  for  misjoinder  of  parties ;  but  the  decree  is  to  be 
modified,  and  amendments  to  be  directed,  according  to  the  special  circumstances 
of  the  case.     Id.  §  49. 

No  suit  is  to  be  open  to  the  objection,  that  it  seeks  only  a  declaratory  order  or 
decree ;  but  the  Court  may  make  binding  declarations  of  right,  without  granting 
consequential  relief.     Id.  §  50. 

The  Court  may  also  adjudicate  on  questions  between  some  of  the  parties  inter- 
ested in  the  property  in  question,  without  making  the  other  persons,  interested 
in  the  property,  parties  to  the  suit ;  or  may  refuse  to  do  so,  at  its  discretion. 
Id.  §  51. 

Upon  a  suit  becoming  abated  by  death,  marriage,  or  otherwise,  or  defective  by 
any  change  of  interest,  or  liability,  a  bill  of  revivor  or  supplemental  bill  is  no 
longer  necessary;  but  the  proper  parties  may  be  called  in  by  an  order,  duly 
served,  operating  to  the  same  effect  as  though  a  bill  of  revivor  or  a  supplemental 
bill  were  filed.     Id.  §  52. 

New  facts  occurring  since  the  filing  of  a  bill  may  be  introduced  by  way  of 
amendment,  without  a  supplemental  bill.  Id.  §  53.  And  if  the  cause  is  not  in 
such  a  state  as  to  allow  of  an  amendment  being  made  to  the  bill,  the  plaintiff  may 
file  in  the  Clerk's  OiRce  a  statement  of  the  new  facts  he  desires  to  put  in  issue ; 
to  which  the  same  proceedings  shall  be  had  as  though  the  statement  were  embod- 
ied in  a  supplemental  bill.     Ord.  44. 

The  Court  may,  by  special  orders,  direct  the  mode  in  which  any  account  shall 
be  taken  or  vouched ;  and  may,  in  its  discretion,  direct  that  the  books  in  which 
the  accounts,  required  to  be  taken  in  any  particular  case,  have  been  kept,  shall 
be  taken  as  prima  facie  evidence  of  the  truth  of  matters  therein  contained,  sub- 
ject to  objections  from  the  parties  interested.     Stat.  Sup.  §  54. 

Real  estate,  which  is  the  subject  of  suit,  may,  if  it  appear  expedient  to  the 
Court,  for  the  purjjoses  of  the  suit,  be  sold  under  an  interlocutory  order  of  the 
■  Court,  at  any  time  after  the  institution  of  the  suit;  in  as  valid  a  manner  as  if  sold 
under  a  decree  or  a  decretal  order  on  the  hearing  of  the  cause.     Id.  §  55. 

The  practice  of  directing  a  case  to  be  stated  for  the  opinion  of  any  Court  of 
Common  Law,  is  abolished ;  and  the  Court  of  Chancery  is  empowered  to  deter- 
mine all  questions  of  law,  which  it  may  deem  necessary  to  decide,  previous  to  the 
decision  of  the  equitable  question  at  issue.  Id.  §  61.  And  where,  under  the 
former  practice,  the  Court  of  Chancery  declined  to  grant  equitable  relief  until 


PART  VI.J  NOTE.  225 

the  parties  had  established  their  legal  title  by  a  suit  at  law,  it  is  now  empowered 
to  determine  the  legal  title,  without  requiring  the  parties  to  proceed  at  law.  Id 
§62. 

The  Lord  Chancellor,  with  the  assistance  of  other  Judges  named,  is  required  to 
make  rules  and  orders  from  time  to  time,  to  carry  this  statute  into  effect ;  to  be 
forthwith  submitted  to  Parliament,  and  if  not  disapproved  by  Parliament  within 
thirty-six  days  thereafter,  then  to  remain  of  force  as  General  Orders  of  the 
Court.     Id.  §§  63,  64. 


The  forms  of  the  bill,  interrogatories,  and  answers,  set  forth  by  the  Lord  Chan- 
cellor, pursuant  to  the  above  statute,  are  as  follows :  — 

Form  of  Bill. 
In  Chancery. 

John  Lee Plaintiff; 

James  Styles  \ 

and  C Defendants. 

Henry  Jones ) 

Bill  of  Complaint. 
To  the  Right  Honorable  Edward  Burtenshaw,  Baron   St.  Leonards,  of 
Slaugham,  in   the  county  of  Sussex,  Lord  High  Chancellor  of  Great 
Britain. 
Humbly  complaining,  showeth  unto  his  Lordship,  John  Lee,  of  Bedford  Square, 
in  the  county  of  Middlesex,  Esq.,  the  above-named  plaintiff,  as  follows :  — 

1.  The  defendant,  James  Styles,  being  seised  in  fee-simple  of  a  farm  called 
Blackacre,  in  the  parish  of  A,  in  the  county  of  B,  with  the  appurtenances,  did,  by 
an  indenture  dated  the  1st  of  May,  one  thousand  eight  hundred  and  fifty,  and 
made  between  the  defendant,  James  Styles,  of  the  one  part,  and  the  plaintiff  of 
the  other  part,  grant  and  convey  the  said  farm  with  the  appurtenances  unto,  and 
to  the  use  of,  the  plaintiff,  his  heirs  and  assigns,  subject  to  a  proviso  for  redemp- 
tion thereof;  in  case  the  defendant,  James  Styles,  his  heirs,  executors,  administra- 
tors, or  assigns,  should  on  the  1st  of  May,  one  thousand  eight  hundred  and  fifty- 
one,  pay  to  the  plaintiff,  his  executors,  administrators,  or  assigns,  the  sum  of  five 
thousand  pounds,  with  interest  thereon,  at  the  rate  of  five  pounds  per  centum 
per  annum,  as  by  the  said  indenture  will  appear. 

2.  The  whole  of  the  said  sum  of  five  thousand  pounds,  together  with  interest 
thereon  at  the  rate  aforesaid,  is  now  due  to  the  plaintiff. 

3.  The  defendant,  Henry  Jones,  claims  to  have  some  charge  upon  the  farm 
and  premises  comprised  in  the  said  indenture  of  mortgage  of  the  1st  of  Mav,  one 
thousand  eight  hundred  and  fifty,  which  charge  is  subsequent  to  the  plaintiff's 
said  mortgage. 

4.  The  plaintiff  has  frequently  applied  to  the  defendants,  James  Styles  and 
Henry  Jones,  and  required  them  either  to  pay  the  said  debt,  or  else  to  release 
the  equity  of  redemption  of  the  premises,  but  they  have  refused  so  to  do. 

5.  The  defendants,  James  Styles  and  Henry  Jones,  pretend  that  there  are 
some  other  mortgages,  charges,  or  encumbrances  affecting  the  premises,  but  they 
refuse  to  discover  the  particulars  thereof. 

VOL.    III.  15 


226  •  LAW    OF   EVIDENCE   IN    EQUITY.  [I'ART  VL 

6.  There  are  clivers  valuable  oak,  elm,  and  other  timber,  and  timber-like  trees 
growing  and  standing  on  the  farm  and  lands  comprised  in  the  said  indenture  of 
mortgage  of  the  1st  of  May,  one  thousand  eight  hundred  and  fifty,  which  trees 
and  timber  are  a  material  part  of  the  plaintiff's  said  security;  and  if  the  same 
or  any  of  them  were  felled  and  taken  away,  the  said  mortgaged  premises  would 
be  an  insufficient  security  to  the  plaintiff  for  the  money  due  thereon. 

7.  The  defendant,  James  Styles,  who  is  in  possession  of  the  said  farm,  has 
marked,  for  felling,  a  large  quantity  of  the  said  oak  and  elm  trees  and  other 
timber,  and  he  has,  by  handbills,  published  on  the  2d  December,  instant,  an- 
nounced the  same  for  sale,  and  he  threatens  and  intends  forthwith  to  cut  down 
and  dispose  of  a  considerable  quantity  of  said  trees  and  timber  on  the  said  farm. 

Prayer. 
The  plaintiff  prays  as  follows :  — 

1.  That  an  account  may  be  taken  of  what  is  due  for  principal  and  interest 
on  the  said  mortgage. 

2.  That  the  defendants,  James  Styles  and  Henry  Jones,  may  be  decreed 
to  pay  to  the  plaintiff  the  amount  which  shall  be  so  found  due,  together 
with  his  costs  of  his  suit,  by  a  short  day  to  be  appointed  for  that  purpose, 
or,  in  default  thereof,  that  the  defendants,  James  Styles  and  Henry  Jones, 
and  all  persons  claiming  under  them,  may  be  absolutely  foreclosed  of  all 
right  and  equity  of  redemption  in  or  to  the  said  mortgaged  premises. 

3.  That  the  defendant,  James  Styles,  may  be  restrained  by  the  injunction 
of  this  honorable  Court  from  felling,  cutting,  or  disposing  of  any  of  the 
timber  or  timber-like  trees  now  standing  or  growing  in  or  upon  the  said 
farm  and  premises  comprised  in  the  said  indenture  of  mortgage,  or  any 
part  thereof. 

4.  That  the  plaintiff  may  have  such  further  or  other  relief  as  the  nature  of 
the  case  may  require. 

Names  of  the  defendants. 

The  defendants  to  this  bill  of  complaint  are :  — 
James  Styles, 
Henry  Jones. 

Y.  Y., 
(Name  of  counsel.) 
Note.  — This  bill  is  filed  by  Messrs.  A.  B.  and  C.  D.,  of  Lincoln's  Inn,  in  the 
county  of  Middlesex,  solicitors  for  the  above-named  plaintiff. 


Form  of  Interrogatories. 
In  Chancery. 

John  Lee Plaintiff; 

James  Styles  ^ 

and  >- ".     .     .     .     Defendants. 

Henry  Jones) 
Interrogatories  for  the  examination  of  the  above-named  defendants  in  answer 

to  the  plaintiff's  bill  of  complaint. 
1.  Does  not  the  defendant,  Henry  Jones,  claim  to  have  some  charge  upon  the 


PART  VI.]  NOTE.  227 

farm  and  premises  comprised  in  the  indenture  of  mortgage  of  the  1st  of  May,  one 
thousand  eight  hundred  and  fifty,  in  the  plaintiff's  bill  mentioned  ? 

2.  What  are  the  particulars  of  such  charge,  if  any ;  the  date,  nature,  and  short 
effect  of  the  security,  and  what  is  due  thereon  ? 

3.  Are  there  or  is  there  any  other  mortgages  or  mortgage,  charges  or  charge, 
encumbrances  or  encumbrance,  in  any  and  what  manner  affecting  the  aforesaid 
premises,  or  any  part  thereof? 

4.  Set  forth  the  particulars  of  such  mortgages  or  mortgage,  charges  or  charge, 
encumbrances  or  encumbrance  ;  the  date,  nature,  and  short  effect  of  the  security ; 
what  is  now  due  thereon ;  and  who  is  or  are  entitled  thereto  respectively ;  and 
when  and  by  whom,  and  in  what  manner,  every  such  mortgage,  charge,  or  en- 
cumbrance was  created. 

The  defendant,  James  Styles,  is  required  to  answer  all  these  interrogatories. 
The  defendant,  Henry  Jones,  is  required  to  answer  the  interrogatories  num- 
bered 1  and  2. 

Y.Y., 
(Name  of  counsel.) 


Form  of  Answer. 
In  Chancery. 

John  Lee Plaintiff; 

James  Styles  \ 

and  >• Defendants. 

Henry  Jones} 
The  answer  of  James  Styles,  one  of  the  above-named  defendants  to  the  bill  of 
complaint  of  the  above-named  plaintiff. 
In  answer  to  the  said  bill,  I,  James  Styles,  say  as  follows :  — 

1.  I  believe  that  the  defendant,  Henry  Jones,  does  claim  to  have  a  charge 
upon  the  farm  and  premises  comprised  in  the  indenture  of  mortgage  of  the  1st  of 
May,  one  thousand  eight  hundred  and  fifty,  in  the  plaintiff's  bill  mentioned. 

2.  Such  charge  was  created  by  an  indenture  dated  the  1st  of  November,  one 
thousand  eight  hundred  and  fifty,  made  between  myself  on  the  one  part,  and  the 
said  defendant,  Henry  Jones,  of  the  other  part,  whereby  I  granted  and  conveyed 
the  said  farm  and  premises,  subject  to  the  mortgage  made  by  the  said  indenture 
of  the  1st  of  May,  one  thousand  eight  hundred  and  fifty,  unto  the  defendant, 
Henry  Jones,  for  securing  the  sum  of  two  thousand  pounds  and  interest  at  the 
rate  of  five  pounds  per  centum  per  annum,  and  the  amount  due  thereon  is  the 
said  sum  of  two  thousand  pounds,  with  interest  thereon,  from  the  date  of  such 
mortgage. 

3.  To  the  best  of  my  knowledge,  remembrance,  and  belief,  there  is  not  any 
other  mortgage,  charge,  or  encumbrance  affecting  the  aforesaid  premises. 

M.  N., 
(Name  of  counsel.) 

Proceedings  by  claim,  instead  of  by  bill,  were  regulated  by  the  Orders  of  April 
22,  1850;  which  permitted  the  following  parties  to  pursue  this  brief  method  of 
relief:  — 


228  LAW   OF  EVIDENCE  IN  EQUITY.  [PART  VI. 

1.  A  creditor,  seeking  payment  out  of  the  personal  estate  of  his  deceased 
debtor. 

2.  A  legatee,  seeking  payment  of  his  legacy  out  of  the  personal  estate  of  the 
testator. 

3.  A  residuary  legatee,  seeking  an  account  of  the  residue,  and  payment  or  ap- 
propriation of  his  share. 

4.  Any  person  entitled  to  a  distributive  share  of  an  intestate's  personal  estate, 
and  seeking  an  account  and  payment. 

5.  An  executor  or  administrator,  seeking  to  have  the  personal  estate  adminis- 
tered under  the  directions  of  the  Court. 

6.  A  legal  or  equitable  mortgage,  or  person  entitled  to  a  lien  as  security  for  a 
debt,  seeking  foreclosure  or  sale,  or  otherwise  to  enforce  his  security. 

7.  A  person  entitled  and  seeking  to  redeem  such  mortgage  or  lien. 

8.  A  person  entitled  to  and  seeking  the  specific  performance  of  an  agreement 
for  the  sale  or  purchase  of  any  property. 

9.  A  person  entitled  to  and  seeking  an  account  of  the  transactions  of  a  part- 
nership which  is  dissolved  or  has  expired. 

10.  A  person  entitled  to  an  equitable  estate  or  interest,  seeking  to  use  the 
name  of  his  trustee  in  a  suit  at  law,  for  his  own  benefit. 

11.  A  person  entitled  to  have  a  new  trustee  appointed,  in  a  case  where  the  in- 
strument creating  the  trust  contains  no  power  for  that  purpose,  or  the  power  can- 
not be  exercised,  and  seeking  to  have  a  new  trustee  appointed. 

In  other  cases,  parties  may  prosecute  by  claim,  on  special  leave  of  the  Court, 
upon  the  ex  parte  application  of  the  person  seeking  equitable  relief. 

These  claims  are  subject  to  the  General  Orders  and  practice  of  the  Court,  in 
the  same  manner  as  proceedings  by  bill,  so  far  as  the  rules  may  apply. 

Forms  are  set  forth,  in  the  schedules  annexed  to  these  Orders,  for  the  pursuit 
of  these  remedies  by  claim ;  of  which  the  following  claim  for  specific  performance 
of  an  agreement,  may  serve  as  a  specimen  :  — 

In  Chancery. 

Between  A.  B.,  Plaintiff. 

C.  D.,  Defendant. 

The  claim  of  A.  B.,  of ,  the  above-named  plaintiff".     The  said  A.  B. 

states,  that  by  an  agreement  dated  the day  of ,  and  signed  by  the 

above-named  defendant,  C.  D.,  he,  the  said  C.  D.,  contracted  to  buy  of  him  [or 
"  to  sell  to  him  "]  certain  freehold  property  [or  "  copyhold,"  "  leasehold,"  or  other 
property  as  the  case  may  6e,]  therein  described  or  referred  to,  for  the  sum  of 

pounds ;  and  that  he  has  made  or  caused  to  be  made  an  application  to  the 

said  C.  D.,  specifically  to  perform  the  said  agreement  on  his  part,  but  that  he  has 
not  done  so,  and  the  said  A.  B.  therefore  claims  to  be  entitled  to  a  specific  per- 
formance of  the  said  agreement,  and  to  have  his  costs  of  this  suit ;  ami  for  that 
purpose  to  have  all  proper  directions  given.  And  he  hereby  offers  specifically  to 
perform  the  same  on  his  part.  [*  See  1  Seton  Dec.(Eng.  Ed.  1862),  9-13, 
and  Daniel's  Chan.  Pract.  (3d  Amer.  Ed.),  end  of  Vol.  III.,  for  the  modifications 
made  by  General  Orders  of  5th  Feb.,  1861,  of  the  course  of  proceeding  pre- 
scribed by  the  15  &  16  Vict.  c.  86,  as  to  the  mode  of  examining  witnesses  and 
taking  evidence,  and  the  practice  relating  thereto.] 


TART  VL]      sources,  MEANS,  AND  INSTRUMENTS   OF  EVIDENCE.  229 


CHAPTER    II. 

OP  THE   SOURCES,  MEANS,  AND   INSTRUMENTS   OP   EVIDENCE. 

[*  §  268.   The  sources  of  evidence  in  equity. 

269.  Things  judicially  taken  notice  of. 

270.  Means  resorted  to  by  court  for  more  accurate  recollection  of  matters  of 

general  notoriety. 

271.  Common  law,  how  determined. 

272.  Presumptions. 

273.  Admissions  by  parties  are  in  bill,  answer  or  agreement. 

274.  Original  bill,  how  framed ;  and  effect  of  statements  in  it. 

275.  May  be  read  as  evidence  for  defendant,  of  any  matters  therein  positively 

averred. 

276.  How  far  may  be  read  by  plaintiff  as  evidence  against  defendant. 

277.  Answer  of  defendant  strong  evidence  against  him. 

278.  But  only  the  answer  of  person  suijum. 

279.  Exceptions  to  rule  in  regard  to  the  answer  of  an  infant. 

280.  Rule  in  regard  to  idiots,  &c. 

281.  Passages  from  answer  in  equity  may  be  read  with  attendant  circomstances. 

282.  Manner  of  statement  in  answer  material. 

283.  Generally  answer  of  one  defendant  cannot  be  read  against  another. 

284.  Answer  of  defendant  how  far  evidence  in  his  own  favor. 

285.  Test  of  the  responsive  character  of  the  answer. 

286.  Defendant's  answer  to  be  under  oath,  unless  plaintiff  dispenses  with  it. 

287.  Exceptions  to  rule  that  defendant's  answer  is  evidence  for  him. 

288.  Not  always  necessary  that  it  should  be  responsive  to  the  bill  to  be  evidence 

for  defendant. 

289.  Circumstantial  evidence  sufficient  sometimes  to  overcome  answer. 

290.  Effect  of  answer  limited  to  that  which  is  strictly  responsive  to  the  bilL 

291.  Rule  when  a  bill  for  discovert/  is  made  by  amendment  a  bill  for  relief. 

291  a.   Testimony  taken  in  original  suit  may  be  used  in  case  of  supplemental  bill. 

292.  Admissions  by  express  agreement  of  parties  should  be  in  writing,  and  signed. 

293.  Must  not  be  extended  by  implication. 

294.  Not  allowed  by  which  known  principles  of  law  are  evaded. 

295.  Documents  ;  production  of,  ordered  by  court. 

296.  When  they  are  in  defendant's  power. 

297.  Must  be  described  with  reasonable  certainty. 

298.  Plaintiff  must  show  a  right,  or  sufficient  interest  in  inspecting,  them. 

299.  Not  always  necessary  that  they  be  referred  to  in  the  answer. 

300.  Certain  documents  exempted  from  discovery. 

301.  American  practice  to  deposit  documents  with  clerk  of  court  generally. 


230  LAW   OF   EVIDENCE   IN   EQUITY.  •  [PART  VI. 

§  302.   Production  obtained  from  plaintifFby  cross  bill. 

303.  Some  exceptions  in  the  English  practice. 

304.  Federal  courts  of  law  of  the  United  States  empowered  by  statute  to  order 

production  of  documents. 

305.  Documents   in  possession  of  one  not   a  party  obtained  by  subpoena  duces 

tecum, 

306.  As  to  proof  of  documents  produced  on  notice. 

307.  Effect  of  order  for  production  of  documents. 

308.  Written  documents  proved  as  at  law. 

309.  Witnesses  may  be  examined  viva  voce  at  hearing  in  certain  cases. 

310.  Questions  admitting  cross  examination  generally  excluded  at  such  exami- 

nation. 

311.  Formal  proof  of  documents  does  not  entitle  adverse  party  to  inspection  before 

hearing. 

312.  General  rule  to  exclude  oral  testimony. 

313.  Witnesses  competent  at  law,  are  competent  in  equity.     Parties  to  record 

competent  in  equity. 

314.  Plaintiff  may  sometimes  examine  co-plaintiff. 

315.  Sometimes  also  one  of  several  defendants. 

316.  Such  examination  ordinarily  operates  as  an  equitable  release  to  the  defend- 

ant, as  to  matters  interrogated  of. 

317.  Defendant  may  sometimes  examine  plaintiff  as  a  witness. 

318.  Co-defendants  may  be  witnesses  for  each  other. 

319.  Testimony  may  be  taken  in  Federal  courts  of  United  States  upon  commis- 

sions. 

320.  In  case  of  disagreement  between  parties,  master  settles  form  of  interroga- 

tories. 

321.  Time  for  taking  testimony  and  publication. 

322.  Practice  in  reference  to  taking  testimony  de  bene  esse. 

323  and  324.    Matters  of  practice  in  taking  depositions  under  a  commission. 

325.  Testimony  may  be  taken  in  perpetuam  rei  memoriam. 

326.  The  admissibility  of  depositions. 

327.  Rules  of  examination  of  witnesses  generally  same  in  equity  as  at  law. 

328.  Trial  by  personal  examination  of  subject  of  controversy,  how  far  resorted  to. 

329.  Most  frequently  exercised  in  cases  concerning  patent  rights  and  copyrights. 

330.  The  judge  may  require  further  proof  upon  his  own  motion. 

331.  May  obtain  it  by  examination  of  witnesses  viva.  voce. 

332.  By  reference  to  a  master. 

333.  Master's  authority  defined. 

334.  Witnesses,  how  summoned. 

335.  Practice  in  taking  accounts  before  master. 

336.  Witnesses  previously  examined  in  the  cause  not  examined  before  the  master 

without  order  of  court. 

337.  Court  aided  by  sending  feigned  issue  to  a  jury  in  court  of  law. 

338.  Whether  the  court  can  order  the  parties  themselves  to  be  examined  without 

their  consent,  not  settled. 

339.  Manner  of  trial  of  an  issue  from  chancery  by  a  court  of  law. 

340.  Evidence  allowed  upon  special  order  in  cases  of  inconvenience  and  unreason- 

able expense. 

341.  Testimony  taken  in  another  cause,  how  and  when  admitted. 

342.  llequisites  of  depositions  taken  in  cross  cause. 


PART  VI.]      SOURCES,  MEANS,  AND  INSTRUMENTS   OF  EVIDENCE.  231 

§  343.   Admission  of  evidence  taken  in  the  Exchequer  or  Admiralty  Court. 
344.  Evidence  of  parties  and  interested  witnesses,  when  allowed  in  special  order. 
345  and  346.   Re-examination  of  a  witness  to  supply  defect  in  former  testimony,  how 
allowed  by  special  order. 

347.  Depositions  may  be  amended  in  open  court. 

348.  Evidence  admitted  on  special  order  to  impeach  witnesses. 


§  268.  The  Sources  of  Evidence  in  Equity  are  principally 
four ;  namely,  first,  the  intelligence  of  the  Court,  or  the  notice 
which  it  judicially  takes  of  certain  tilings,  and  the  things  which  it 
presianes;  secondly,  the  admissions  of  the  parties,  contained  in 
their  pleadings  atid  agreements  ;  thirdly,  documents  ;  and,  fourthly, 
the  testimony  of  witnesses. 

1.    THINGS   JUDICIALLY   TAKEN   NOTICE    OF,   AND   PRESUMED. 

§  269.  The  first  of  these,  namely,  things  judicially  taken 
notice  of,  has  already  been  briefly  treated  in  a  preceding  volume".^ 
The  principle  on  which  such  notice  is  taken,  is  the  universal  no- 
toriety of  the  facts  in  question.  These  are  sometimes  distributed 
into  two  classes,  composed  of  those  things  of  which  the  Court  suo 
motu  takes  notice,  and  those  of  which  it  does  not  suo  motu  take  no- 
tice, but  expects  its  attention  to  be  directed  to  them  by  the  parties ; 
in  which  latter  class  are  enumerated  those  local  and  personal  stat- 
utes, in  which  it  is  enacted,  that  they  shall  be  judicially  taken  no- 
tice of  without  being  specially  pleaded ;  journals  of  the  two  houses 
of  the  legislature  ;  public  proclamations;  public  records,  &c.  But 
this  distinction  is  of  little  or  no  practical  importance ;  since,  in  the 
progress  of  every  trial,  the  attention  of  the  Court  is  always  called 
alike  to  all  matters  within  its  cognizance,  which  the  parties  or 
their  counsel  deem  material  to  their  respective  interests,  to  which- 
soever of  those  two  classes  they  may  seem  to  belong ;  and  when- 
ever a  document  or  writing  is  required  to  aid  the  recollection  of 
the  Court,  it  is  generally  provided  beforehand  for  the  occasion. 
It  is,  for  example,  wholly  immaterial,  in  the  final  result,  whether 
the  facts  of  public  and  general  history  and  their  dates  are  recog- 
nized by  the  Court  sudpte  sponte,  the  books  and  chronicles  or 
almanacs  being  used  merely  to  aid  the  memory  ;  or  whether  they 
will  remain  unnoticed  until  suggested  by  the  parties  and  verified 
by  the  books ;  or  whether  the  books  themselves  are  adduced  by 

^  Ante,  Vol.  1,  ch.  2,  per  tot. 


232  LAW   OF  EVIDENCE  IN  EQUITY.  [PART  VI. 

the  parties  and  admitted  by  the  Court  as  instruments  of  evidence, 
in  the  nature  of  public  documents ;  the  process  and  the  result  be- 
ing in  each  case  the  same.^  Neither  is  it  possible  to  distinguish  d 
priori,  between  those  subjects  of  science  which  are  in  fact  of  such 
notoriety  as  entitles  them  to  be  judicially  recognized,  and  those 
which  are  not ;  nor,  between  those  things  which  ought  to  be  gen- 
erally known,  and  those,  the  knowledge  of  which  is  not  of  general 
obligation  ;  since  each  particular  case  must  be  decided  by  the 
Judge,  as  it  occurs,  and  he  can  have  no  other  standard  than  the 
measure  of  his  own  information  or  learning  ;  —  a  standard  subject 
to  variations  as  numerous  as  the  individuals  by  whom  it  is  to  be 
applied.  This  standard  also  must  be  liable  to  constant  changes 
with  the  advancement  and  gradual  diffusion  of  science ;  many 
things  which  formerly  were  occult,  and  to  be  proved  by  experts, 
as,  for  example,  many  facts  in  chemistry,  and  the  like,  being  now, 
in  the  same  places,  matters  of  common  learning  in  the  public 
schools.  The  same  may,  in  some  degree,  be  said  of  every  branch 
of  physical  science,  of  geographical  knowledge,  and  of  the  religion 
and  customs  of  foreign  nations.  A  different  application  of  the 
rule  may  also  be  requisite  in  different  parts  of  the  same  country 
or  government,  as,  for  example,  Maine  and  California,  or  England 
and  Australia,  or  India. 

§  270.  In  regard  to  the  means  or  instruments  to  which  resort  is 
usually  had  hy  the  Court,  for  the  more  accurate  recollection  of  matters 
of  general  notoriety,  it  may  be  observed,  that  the  preamble  of  a 
public  statute  will  ordinarily  be  sufficient  for  the  knowledge  of  any 
general  fact  it  recites,^  any  communication  from  the  Secretary  of 
State  will  suffice,  as  to  the  precise  state  of  our  relations  with  a  for- 
eign government ;  ^  the  government  Gazette,  for  the  dates  of  pub- 
lic events,  such  as  proclamations  of  war  or  peace,  signature  of 
treaties,  terms  of  capitulations,  and  the  like  ;  *  the  diplomatic 
communications  of  our  ministers  abroad,  for  the  relations  of  for- 
eign governments  to  each  other,^  and,  generally,  public  documents 
for  the  public  facts  they  contain.^ 

§  271.  In  taking  notice  of  the  common  and  unwritten  laiv  or 
customs  of  the  country,  resort  is  had  to  the  reported  judgments  of 

1  Ante,  Vol.  1,  §  497.  <  Ante,  Vol.  1,  §  492. 

2  Doct.  &  St.  1).  2,  ch.  55 ;  1  Inst.  19  b;         6  Thclluson  v.  Coslinp,  4  Esp.  266. 
Rex  V.  Sutton,  4  M.  &  S.  542.  6  Ante,  Vol.  1,  §§  6,  490,  491. 

3  Taylor  v.  Biirclav,  2  Sim.  220.     And 
Bee  ante,  Vol.  1,  §§  6, "490,  491. 


PART  \1.]      SOURCES,  MEANS,  AND  INSTRUMENTS   OF   EVIDENCE.  233 

the  Courts,  and  to  the  great  Text-books,  such  as  the  writings  of 
Bracton,  Lord  Coke,  Lord  Hale,  Sir  Michael  Foster,  Fitzherbert, 
and  others.  There  is,  however,  a  diversity  in  the  degrees  of  credit 
given  to  books  of  reports  and  to  the  judgments  themselves,  arising 
from  the  character  of  the  reporter,  and  of  the  Court.^  The  judg- 
ments of  Courts  of  appellate  and  ultimate  jurisdiction  are  regarded 
as  binding  by  those  Courts  whose  decisions  they  are  authorized  to 
revise  and  reverse.  And  Judges,  sitting  at  nisi  prius,  will  not 
overrule  or  disregard  the  decisions  in  bane  of  their  own  Courts. 
But  the  decisions  of  other  Courts  of  co-ordinate  rank  and  author- 
ity, and  the  decisions  of  the  Courts  of  other  States,  are  not  gener- 
ally regarded  as  of  binding  force,  or  as  conclusive  evidence  of  the 
Common  Law ;  but  are  read  and  respected  according  to  the  esti- 
mation in  which  the  tribunals  are  held. 

§  272.  The  subject  of  presumptions  having  been  treated  in  a 
previous  volume,^  what  is  there  stated  needs  no  repetition  here. 
Wherever  the  entire  case  is  heard  and  decided  by  the  Judge  or 
Chancellor,  without  a  Jury,  all  inferences  which  Jurors  might 
draw,  and  all  things  which  they  may  lawfully  presume,  will  be 
drawn  and  presumed  by  the  Court. 

2.   ADMISSIONS. 

§  278.  In  the  second  place,  as  to  admissions  made  by  the  par- 
ties. These  are  either  in  the  bill,  or  in  the  anstver,  or  in  some 
special  agreement,  made  in  the  cause,  for  the  purpose  of  dispensing 
with  other  proof.  And  statements  in  the  bill  may  sometimes  be 
used  against  the  plaintiff,  and  at  others,  in  his  favor. 

§  274.  An  original  bill,  praying  relief,  is  so  framed  as  to  set 
forth  the  rights  of  tlie  plaintiff;  the  manner  in  which  he  is  in- 
jured ;  the  person  by  whom  it  is  done ;  the  material  circum- 
stances of  the  time,  place,  manner,  and  other  incidents ;  and  the 
particular  relief  he  seeks  from  the  Court.^  It  consists  of  several 
parts,  the  principal  of  which  is  termed  the  premises,  or  stating 
part,  and  contains  a  full  and  accurate  narrative  of  the  facts  and 
circumstances  of  the  plaintiff's  case,  upon  which  the  ultimate  de- 
cree is  founded.  Ordinarily,  the  bill  is  drawn  by  the  solicitor, 
upon  the  general  instructions  given  by  his  client,  and  is  signed  by 

1  See,  on  the  estimation  of  authorities,  occasional  remarks  upon  their  respective 

Ram  on  Legal  Judgment,  ch.  18,  per  tot.  merits."     3d  ed.  1855.] 
[See  also  Mr.  Wallace's  work,  "The  Re-         2  j^^te,  Vol.  1,  ch.  4,  §§  14-48. 
porters   Chronologically  Arranged ;   with         ^  Story,  Eq.  PI.  §  23. 


284  LAW   OF  EVIDENCE  IN  EQUITY.  [PART  VI. 

the  solicitor  only ;  and  hence  it  has  been  regarded  as  the  mere 
statement  of  counsel,  frequently  fictitious,  and  hypothetically  con- 
structed, in  order  to  extract  a  more  complete  answer  from  the 
defendant.  On  this  ground  it  has  been  laid  down  as  a  rule,  in 
England,  that  "  generally  speaking,  a  bill  in  Chancery  cannot  be 
received  as  evidence,  in  a  Court  of  Law,  to  prove  any  facts  either 
alleged  or  denied  in  such  bill "  ;  though  the  rule  is  admitted  to  be 
subject  to  some  exceptions.^  But  as  this  rule  is  avowedly  founded 
on  the  assumption,  that  the  statements  in  the  bill  are,  in  most 
cases  at  least,  partially  false,  but  permitted  for  the  sake  of  eliciting 
truth,  or  are  made  upon  misinformation,  and  to  be  afterwards  cor- 
rected by  amendment,  upon  better  knowledge  ;  it  is  plain  that  the 
rule  ought  to  be  restricted  to  cases  falling  within  the  principle  on 
which  it  is  founded,  namely,  to  allegations  of  facts  not  lying  with- 
in the  peculiar  knowledge  of  the  counsel.  But  in  England,  since 
the  adoption  of  this  rule,  and  in  the  United  States  for  a  longer 
period,  the  use  of  fictions  in  pleading  has  been  pointedly  repro- 
bated, and  much  effort  has  been  employed,  both  by  Courts  and 
Legislatures,  to  obtain  a  simple  statement  of  the  truth,  in  all  legal 
proceedings ;  and  the  success  which  has  crowned  these  endeavors 
has  materially  weakened  the  reason  of  the  rule,  so  far  as  it  regards 
facts  in  the  knowledge  of  the  party  alone,  and  not  of  his  counsel. 
But  however  this  may  be,  it  is  to  be  observed,  that  in  some  of  the 
United  States,  bills  are  usually  signed  by  the  party,  as  well  as  by 
counsel ;  that  some  of  the  facts  are  ordinarily  within  the  peculiar 
knowledge  of  the  counsel,  and  not  of  the  party ;  and  that,  in 
certain  cases,  either  the  bill  itself  is  sworn  to,  or  it  is  accompanied 
by  an  affidavit,  stating  the  material  facts.  Such  is  the  case  in 
some  bills  of  discovery ;  bills  to  obtain  the  benefit  of  lost  intru- 
mcnts,  and  some  others.  Now,  in  all  these  and  the  like  cases,  it 
is  not  easy  to  perceive  why  the  statements  in  the  bill,  consider- 

1  See  the  answer  of  the  Jn(l<T:es,  in  the  proceedings  upon  the  bill.      Bull.  N.   P. 

Banbury  Peerage  case,  2  Sclw.  N.  P.  744.  235.     But  in  several  American  cases  it  has 

Mr.  Pliillips,  in  the  earlier  editions  of  his  been   rejected,   in   trials    At   law,   on   the 

work  on   Evidence,  states  the  rule  as  well  ground  that  many  of  the  facts  stated  were 

settled,  witiumt  qualification  ;    but  in  the  merely  the   suggestions   of  counsel.     Sec 

latest  edition,  after  observing  that  the  au-  Owens  v.  Dawson,  1  Watts,   149;    llees  v. 

thorities  are  contradictory  upon  this  sub-  Lawless,  4  Litt.  218;    Belden  v.  Davis,  2 

jcct,  he  only  renuirks,  that  "it  seems  to  Hall,  N.  Y.  Rep.  444.     If  the  bill  has  been 

be  the  more  ])revaletit  opinion  "  that  a  bill  sworn  to,  it  is  conceded  to  be  admissible, 

in  Chancery  cannot  i)e  used  at  law  as  the  See  Rankin  v.  Maxwell,  2  A.  K.  Marsh, 

admission  of  the  ])laintifV.     2  Phil.  Ev.  28  488;    Chipman  v.  Thompson,  Walk.  Ch 

(Otbcd.).     .Mr.  Justice  BuUer  held  it  ad-  R.  405. 
inissible  in  all  cases  where  there  had  been 


PART  VI.]      SOURCES,  MEANS,  AND   INSTRUMENTS    OF   EVIDENCE. 


235 


ately  made,  of  facts  known  to  the  person  making  them,  should  not 
be  received  elsewhere,  against  the  party,  as  evidence  of  his  admis- 
sions of  the  facts  so  stated. ^    Where  the  statement  has  been  sworn 


1  In  Ld.  Trimlestown  v.  Kemmis,  9  CI. 
&  Fin.  749,  777,  779,  780,  which  was  a 
writ  of  error  on  a  judgment  in  ejectment, 
the  defendant  put  in  evidence  a  deed  of 
compromise  between  the  widow  of  the 
plaintiff's  ancestor  and  the  lessor  of  the 
plaintiff,  showing  their  dealings  with  the 
property  in  question  ;  and  then  offered  in 
evidence  a  bill  in  Chancery,  tiled  by  the 
administrator  of  the  same  ancestor  against 
the  same  lessor,  as  his  agent,  and  the  de- 
cree thereon,  to  explain  one  of  the  items  of 
account,  in  the  schedule  referred  to  in  that 
deed  of  compromise ;  and  for  this  purpose 
the  bill  was  held  admissible.  The  plaintiff 
also  offered  in  evidence,  by  way  of  reply, 
a  bill  in  Chancery  tiled  against  one  of  his 
ancestors,  i-especting  the  same  premises, 
and  the  answer  of  his  ancestor,  stating 
what  he  had  heard  his  grandmother,  who 
was  a  jointress  in  possession  of  part  of  the 
lands,  say,  in  regard  to  her  refusing  to 
join  her  son  in  any  alienation  of  the  es- 
tate. This  evidence  was  held  rightly  re- 
jected, as  being  heursdy;  thougli  it  was 
conceded  that,  had  it  been  the  declaration 
of  a  partij  in  possession  of  the  estate,  and 
made  against,  his  own  interest,  it  might 
have  been  received. 

In  the  subsequent  case  of  Boileau  v. 
Eutlin,  2  Exch.  R.  665  (1848),  which  was 
assumpsit  for  use  and  occupation,  the  de- 
fence was,  that  the  defendant  had  occupied 
under  an  agreement  to  purchase.  Though 
he  had  given  notice  to  the  plaintiff  to  pi'o- 
duce  this  agreement,  he  did  not  call  for  it, 
but  in  proof  of  it  he  put  in  a  bill  and 
other  pi-oceedings  in  a  suit  in  Chancery 
brought  by  the  plaintiff  against  him,  for 
not  performing  that  agreement,  and  stat- 
ing its  terms.  This  was  objected  to,  but 
was  admitted  by  Ld.  Denman,  as  some 
evidence  of  the  contract,  reserving  the 
point.  On  a  motion  for  a  new  trial  for 
this  cause,  after  a  full  consideration  of  the 
subject,  the  evidence  was  held  inadmissi- 
ble, upon  grounds  stated  by  Parke,  B.,  as 
follows :  — 

"  It  is  certain  that  a  bill  in  Chancery  is 
no  evidence  against  the  party  in  whose 
name  it  is  filed,  unless  his  privity  to  it  is 
shown.  That  was  decided  in  WooUet  v. 
Roberts,  {a)  though  no  such  decision  was 
wanted.  The  proceedings  on  such  a  bill, 
after  answer,  tend  to  diminish  the  pre- 
sumption that  it  might  have  been  filed  by 
a  stranger,  and  appear  to  have  been  held 


sufficient  to  establish  the  privity  of  the 
party  in  whose  name  it  was  filed.  Snow  d. 
Lord  Crawley  v.  Phillips  (b).  When  that 
privity  is  established,  there  is  no  doubt 
that  the  bill  is  admissible  to  show  the  fact 
that  such  a  suit  was  instituted,  and  what 
the  subject  of  it  was  ;  but  the  question  is, 
whether  the  statements  in  it  are  any  evi- 
dence against  the  plaintiff  of  their  truth, 
on  the  footing  of  an  admission.  Upon 
this  point  the  authorities  are  conflicting. 
In  the  case  referred  to  in  Siderfin,  it  would 
seem  that  the  bill,  which  was  filed  by  the 
defendant  to  be  relieved  from  a  bond  as 
simoniacal,  was  used  against  him  to  prove 
that  he  was  simoniacally  presented ;  but  it 
does  not  very  distinctly  so  appear.  In 
Buller's  Nisi  Prius  (c)  a  bill  in  Chancery 
is  said  to  be  '  evidence  against  the  com- 
plainant, for  the  allegations  of  every  man's 
bill  shall  be  supposed  to  be  true ;  and 
therefore,  it  amounts  to  a  confession  and 
admission  of  the  truth  of  any  fact ;  and  if 
the  counsel  have  mingled  in  it  any  fact 
that  is  not  true,  the  party  may  have  his 
action.'  And,  after  referring  to  the  con- 
flicting authority  in  Fitzgibbon,  196,  the 
author  of  that  Treatise  on  the  law  of  Nisi 
Prius  lays  it  down  as  a  clear  proposition, 
that  where  the  matter  is  stated  by  the  bill 
as  a  fact  on  which  the  plaintiff  founds  his 
claim  for  relief,  it  will  be  admitted  in  evi- 
dence, and  will  amount  to  proof  of  a  con- 
fession. These  are  the  authorities  in  favor 
of  the  defendant.  The  recent  case  of 
Lord  Trimlestown  v.  Kemmis,  (rf)  which 
was  also  mentioned,  is  not  one  in  his  favor, 
for  the  bill  was  there  admitted  to  show 
what  the  subject  of  the  suit  was,  and  to 
explain  a  subsequent  agreement  tor  a  set- 
tlement between  the  parties.  On  the  other 
hand,  in  the  above-mentioned  case  of  Lord 
Ferrers  v.  Shirley,  (e)  a  bill  preferred  by 
the  defendant,  stating  the  existence  of  a 
deed  at  that  time,  was  objected  to  as  proof 
of  that  fact,  on  the  ground  that  it  was  no 
more  than  the  surmise  of  counsel  for  the 
better  discovery  of  the  title  ;  and  the  Court 
would  not  suffer  it  to  be  read.  And  Lord 
Kenyon,  in  Doe  d.  Bowerman  v.  Sybourn, 
{/)  where  the  distinction  was  insisted  niton 
between  facts  stated  by  way  of  inducement, 
and  those  whereon  the  plaintiff'  founds  his 
claim  for  relief,  rejected  that  distinction, 
and  pronounced  his  judgment,  in  which 
the  Court  acquiesced,  that  a  bill  in  Chan- 
cery is  never  admitted  further  than  to  show 


(a)   1  Ch.  Ca.  64. 
(6)  1  Sid.  220. 


(c)  Page  236. 

(d)  9  0.  &F.  749. 


(e)  Fitz,  193. 
(/)  7  T.  R.  2. 


236 


LAW   OF   EVIDENCE  IN  EQUITY. 


[part  VI. 


to,  it  constitutes  a  clear  exception  to  the  rule  ;  and  in  either  case 
it  is  ordinarily  not  conclusive,  but  open  to  explanation.^ 


that  such  a  bill  did  exist,  and  that  certain 
focts  were  in  issue  between  the  parties,  in 
order  to  let  in  the  answer  or  depositions. 
And  it  appears  that  in  Taylor  v.  Cole,  (a) 
his  Lordship  held  the  same  doctrine ;  with 
the  exception,  that  a  bill  in  Chancery  by 
an  ancestor  was  evidence  to  prove  a  fam- 
ily pedigree  stated  therein,  in  the  same 
manner  as  an  inscription  on  a  tombstone, 
or  an  entry  in  a  Bible.     This  exception 
also  was  disallowed  by  the  opinion  of  the 
Judges  in  the  Banbury  Peerage  case  (re- 
ported in  1  Selwyn's  Nisi  Prius,  756,  20th 
ed.,  and  correctly  reported,  for  I  have  ex- 
amined  the  books  of   the    Committee  of 
Privileges,   28th   February,   and   30th  of 
May,    1809).      The   Judges    unanimously 
held,  that  a  bill  in  equity  was  no  proof  of 
the  facts  therein  alleged,  or  as  a  declara- 
tion respecting  pedigree ;   that  it  made  no 
distinction  that  the  bill  was  filed  for  relief. 
And,  in  answer  to  the  question,  whether 
any  bill  in  Chancery  can  ever  be  received 
as  evidence  in  the  Court  of  Law,  to  prove 
any  facts  either  alleged  or  denied  in  such 
bill,  the  Judges  gave  their  opinion,  that, 
generally  speaking,  a  bill  in  Chancery  can- 
not be  received  as  evidence  to  prove  any 
fact  alleged  or  denied  in  such  bill.     But 
whether  any  possible  case  might  be  put 
which  would  form  an  exception  to  such 
general  rule,  the  Judges  could  not  under- 
take to  say.     In  the  case  of  Medcalfe  v. 
Medcalfe,  (6)  Lord  Chancellor  Hardwicke 
held,  that  the  rule  of  evidence  at  law  was, 
that  a  bill  in  Chancery  ought  not  to  be  re- 
ceived in  evidence,  for  it  is  taken  to  be  the 
suggestion   of  counsel   only;    but   in   the 
Court  of    Chancery   it    had    been    often 
allowed,  and  the  bill  was  read.     This  dis- 
tinction was  afterwards  repudiated  in  the 
case  of  Kilbee  v.  Sneyd,  (c)  by  Lord  Chan- 
cellor Hart.     When  the  defendant's  coun- 
sel oflFercd  to  read  part  of  the  bill,  as  proof 
of  certain  facts  on  which  he  rested  part  of 
his  defence,  the  Lord  Chancellor  said,  the 
Court  never  read  a  bill  as  evidence  of  the 
plaintiff's   knowledge  of   a  fact.      'It  is 
mere  pleader's  matter  ;  the  statements  of  a 
bill  are  no  more  than  the  flourishes  of  the 
draughtsman  ' ;    and   that  no  decree  was 
ever  founded  on  the  allegations  of  a  plain- 
tiff's bill,  as  evidence  of  facts ;  and  he  fur- 
ther said,  that  the  statements  of  a  bill  arc 
not  evidence,  ami  the  registrar  could  not 
enter  any  part  of  it  on  his  notes  as  read. 
la  this  state  of  the   authorities   directly 


bearing  upon  this  question,  there  can  be 
no  doubt  that  the  weight  of  them  is  against 
the  reception  of  a  bill  in  equity  as  an  ad- 
mission of  the  truth  of  any  of  the  alleged 
facts.     But  it  vFas  argued,  that  there  are 
many  more  recent   authorities  indirectly 
bearing  upon  this  question,  which  afford  a 
strong  analogy  in  favor  of  the  reception  of 
a  bill  in  equity  as  evidence  in  the  nature  of 
a  confession.     These  are  the  eases  of  Brick- 
ell  V.  Hulse  (d)  and  Gardner  v.  Moult,  (e). 
In  the  first  of  these,  a  party  using  an  affi- 
davit on  a  motion,  in  the  second,  by  send- 
ing another  to  state  a  particular  fact,  was 
held  to  make  the  affidavit  and  statement, 
respectively,    evidence     against     himself. 
These  cases  do  not  Ml  under  the  descrip- 
tion  of  pleadings   by   parties ;    they  are 
rather  instances  of  admission  by  conduct, 
and  are  analogous  to  those  in  which  the 
declarations  of  third  persons  are  made  evi- 
dence by  the  express  reference  of  the  party 
to  them  as  being  true.     This  is  the  expla- 
nation very  rightly  given  in  Mr.  Taylor's 
recent  Treatise  on  lividence.     In  the  first 
of  the  above-mentioned  cases  it  may  be 
presumed  that  the  defendant  prepared  the 
affidavit,  which  he  afterwards  exhibited  as 
true ;  at  all  events,  that  he  exhibited  it  for 
the  purpose  of  proving  a  certain  fact.     In  the 
second,  it  must  be  taken  that  he  sent  the 
servant  to  prove  a  particular  act  of  bank- 
ruptcy ;  for,  if  he  sent  him  to  be  examined 
as  a  witness,  and  to  give  evidence  generally 
as  to  any  act  to  which  the  commissioner 
might  examine  him,  there  could  be  no  rea- 
son for  holding  that  his  answers  would  be 
evidence  against  the  party,  any  more  than 
there  would  be  for  receiving  the  evidence 
of  a  witness  examined  by  a  party  in  an 
ordinary  trial   at  law,  as  an  implied  ad- 
mission by  him,  which,  it  is  conceded,  can 
never  be  done.     ( See  Lord  Denman's  judg- 
ment in  both  the  cases  last  cited.)     The 
case  of  Cole  v.  Hadly  (/)  was  also  referred 
to  as  an  authority.     From  the  short  report 
of  that  ease,  it  is  not  clear  on  what  ground 
the  evidence  was  received.     It  would  seem 
that  it  was  received  as  the  deposition  of 
a  witness  on  a  prior  inquiry,  between  the 
same  parties,  on  the   same  question.     It 
could  not  be  on  the  ground  that  the  state- 
ment was  evidence  against  the  party,  sim- 
ply because  the  witness  was  produced  by 
him,  as  the  contrary  was  laid  down  in  the 
two  cases  of  Brickell  v.  Ilulse  and  Gard- 
ner  V.    Moult,    which  were  referred   to. 


a)  7  T.  R.  9,  n. 
'6)  1  Atk.  63. 


Scean/e,  Vol.  1,  §§  212,  551. 

(c)  2  Molloy,  208. 

(d)  7  A.  &  E.  454. 


(e)  10  A.  &  E.  464. 
(/)   11  A.  &E.  807. 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  237 


§  275.  In  Courts  of  Equity,  however,  the  hill  may  he  read  as 
evidence  for  the  defendant,  of  any  of  the  matters  therein  directly 
and  positively  averred. ^  For  it  is  a  part  of  that  record  upon  the 
whole  of  which  the  decree  is  to  be  made  ;  and  whether  the  allega- 
tions be  true  or  not,  is  immaterial,  they  being  put  forth  as  true, 
and  of  the  nature  of  judicial  admissions,  for  the  purposes  of  that 
particular  trial. ^  But  it  is  only  the  amended  bill  that  may  thus 
be  read,  this  alone  being  of  record ;  unless  the  amendment  has 
altered  the  effect  of  the  answer,  or  rendered  it  obscure  ;  in  which 
case  the  original  bill  may  be  read  by  the  defendant,  for  the  pur- 


These  authorities,  therefore,  aiFord  no  rea- 
son for  doubting  the  propriety  of  the  de- 
cisions above  referred  to  as  to  bills  in 
equity.  It  would  seem  that  those,  as  well 
as  pleadings  at  common  law,  arc  not  to  be 
treated  as  positive  allegations  of  the  truth 
of  the  facts  therein,  for  all  purposes,  but 
only  as  statements  of  the  case  of  the  party, 
to  be  admitted  or  denied  by  the  opposite 
side,  and  if  denied  to  be  proved,  and  ul- 
timately submitted  for  judicial  decision. 
The  facts  actually  decided  by  an  issue  in 
any  suit  cannot  be  again  litigated  between 
the  same  parties,  and  are  evidence  between 
them,  and  that  conclusive,  upon  a  differ- 
ent principle,  and  for  the  purpose  of  termi- 
nating litigation ;  and  so  are  the  material 
facts  alleged  by  one  party,  which  are  di-  . 
rectly  admitted  by  the  opposite  party,  or 
indirectly  admitted  by  taking  a  traverse  on 
some  other  facts,  but  only  if  the  traverse  is 
found  against  the  party  making  it.  But 
the  statements  of  a  party  in  a  declaration 
or  plea,  though,  for  the  purposes  of  the 
cause,  he  is  bound  by  those  that  are  mate- 
rial, and  the  evidence  must  be  confined  to 
them  upon  an  issue,  ought  not,  it  should 
seem,  to  be  treated  as  confessions  of  the 
truth  of  the  facts  stated.  Many  cases 
were  suggested  in  the  argument  before 
us,  of  the  inconveniences  and  absurdities 
which  would  follow  from  their  admission 
as  evidence  in  other  suits,  of  the  truth  of 
the  facts  stated.  There  is,  however,  we 
believe,  no  direct  authority  on  this  point. 
The  dictum  of  Lord  Chief  Justice  Tindal, 
in  the  Fishmonger's  Company  v.  Kobin- 
son,  (a)  which  was  referred  to  in  argument, 
seems  to  be  considered  as  amounting  to  a 
decision  on  this  point ;  but  it  was  unneces- 
sary for  the  determination  of  that  case. 
It  is  enough,  however,  to  say,  that,  as  to 
bills  in  equity,  the  weight  of  authority  is 
clearly  against  their  admissibility,  for  the 
only  purpose  for  which  they  were  material 
in  the  present  case ;  and  we  are  bound  by 
that  authority."     Id.  676-681. 


From  these  and  other  authorities,  it 
seems  clear,  that  the  bill,  if  sworn  to,  is 
evidence  against  the  plaintiff"  as  an  admis- 
sion of  the  truth  of  the  facts  therein  stated. 
Its  admissibility,  however,  does  not  de- 
pend on  the  oath,  but  on  the  fact  that  he 
is  conusant  of  the  statements  in  the  bill, 
and  solemnly  propounds  them  as  true. 
The  oath  is  a  proof  of  this  knowledge  and 
solemn  assertion ;  but  may  not  .other  evi- 
dence be  equally  satisfactory  1  If  so,  the 
question  is  reduced  to  the  single  point  of 
the  plaintiff's  knowledge  of  what  is  con- 
tained in  the  bill ;  unless  it  be  maintained 
that  notwithstanding  the  present  state  of 
forensic  law,  parties  are  still  at  liberty  to 
allege,  as  true,  material  propositions  of 
fact  which  they  know  to  be  false.  It  is 
therefore  conceived  that,  in  the  United 
States,  and  under  the  new  rules  of  prac- 
tice, the  general  question,  as  stated  in 
Boileau  v.  Rutlin,  may  still  be  regarded 
as  an  open  question.  There  was  another 
ground  on  which  the  bill  in  chancery  in 
Boileau  v.  Rutlin  might  well  have  been 
rejected,  namely,  that  the  admission  it 
contained  was  a  confessio  juris,  or,  at  most, 
a  mixed  proposition  of  law  and  fiict,  which 
is  not  to  be  proved  by  the  mere  admission 
of  the  party,  when  better  evidence  is  with- 
in the  power  of  the  adverse  party,  by  the 
production  of  the  instrument  itself.  See 
ante.  Vol.  I,  §  96.  [McHea  v.  Ins.  Co.  of 
Columbus,  16  Ala.  755.] 

1  2  Dan.  Ch.  Pr.  974,  976  [*  3d  Am. 
Ed.  832,  834] ;  Ives  v.  Medcalfe,  1  Atk. 
63,  65.  Such,  also,  was  the  opinion  of 
Lord  Chancellor  Apsley,  afterwards  Earl 
Bathurst,  the  real  author  of  the  book  so 
well  known  as  Buller's  Nisi  Prius  ;  as  ap- 
pears from  the  dedication  of  the  first  edi- 
tion, and  from  Lord  Mansfield's  manner  of 
quoting  it,  in  5  Burr.  2832.  See  Bull.  N. 
P.  235  ;  2  Exch.  Rep.  677,  n. ;  Ante,  Vol. 
I,  §.'S51. 

2  See  ante,  Vol.  1.  §§  169,  186,  208. 


(a)  5  M.  &  G.  192, 


238  LAW   OF   EVIDENCE  IN   EQUITY.  [PART  VI. 

pose  of  explaining  the  answer.^  It  may  also  be  read,  upon  the 
question  as  to  costs,  for  the  purpose  of  showing  quo  animo  the  bill 
was  filed.2  And  the  plaintiff's  bill,  filed  in  another  suit,  may 
sometimes  be  read  against  him,  on  proof  of  his  actual  privity  to 
the  contents  and  to  the  filing  of  it ;  especially  where  it  is  read  in 
explanation  or  corroboration  of  other  evidence  in  the  cause.^  But 
where  the  plaintiff  has  incorrectly  stated  circumstances  with  which 
he  may  well  be  presumed  to  have  been  unacquainted,  and  the 
defendant  does  not  rely  upon  them  in  his  answer,  the  plaintiff  will 
not  be  held  bound  by  the  statement.* 

§  276.  The  bill  alone  may  also  sometimes  be  read  by  the  plain- 
tiff, as  evidence  against  the  dtj'endant  of  his  admission  of  the  truth 
of  the  matters  therein  alleged,  and  not  noticed  in  his  answer. 
The  principle,  governing  this  class  of  cases,  is  this,  that  the  de- 
fendant, being  solemnly  required  to  admit  or  deny  the  truth  of 
the  allegations,  has,  by  his  silence,  admitted  it.  Qui  tacet,  cum 
loqui  debet  consentire  videtur.  But  this  applies  only  to  facts  either 
directly  charged  to  be  within  the  knowledge  of  the  defendant,  or 
which  may  fairly  be  presumed  to  be  so;^  for  if  the  matters  alleged 
are  not  of  either  of  these  descriptions,  the  better  opinion  is,  that 
the  defendant's  omission  to  notice  them  in  his  answer  is  merely 
matter  of  exception  on  the  part  of  the  plaintiff,  in  order  to  obtain 
a  distinct  admission  or  denial,  upon  the  particular  point.^  If  he  re- 
plies, instead  of  excepting,  he  must  prove  the  allegations.^  If  the 
defendant,  being  duly  served  with  a  subjyoena,  contumaciously  neg- 
lects to  appear  and  answer ;  ^  or  moves  to  dismiss  the  bill,  on  the 

1  2  Dan.  Ch.  Pr.  976  [*  3d  Amer.  Ed.  graham  v.  Tompkins,  16  Mis.  (1  Bennett) 
834];  Hales  v.  Pomfret,  Dan.  Exch.  R.  399;  Lyon  v.  Boilin-,  14  Ala.  753;  Har- 
141.  And  see  M'Gowen  v.  Young,  2  Ay  v.  Heard,  15  Ark.  184;  Ryan  v.  Mel- 
Stewart,  276.  vin,  14  111.  68.] 

2  Ibid. ;  Fitzgerald  v.  O'Flaherty,  1  "  Cochran  v.  Cowper,  1  Harringt.  200. 
Moll.  347.  In  Young  v.  Grundy,  6  Cranch,  51,  it  was 

'^    2  Dan.  Ch.  Pr.  977  [*  3d  Amer.  Ed.  said,  in  general  terms,  that  if  the  answer 

835] ;  Woollett  V.  Roberts,  1  Ch.  Cas.  64  ;  neither  admits  nor  denies  the  allegations  in 

Ilandcside  v.  Brown,   1   Dick.  236;   Lord  the  bill,  they  must  be  proved  at  the  hear- 

Trimlestown  v.  Kemmis,  9  CI.  &  Fin.  749.  ing  ;  the  distinction  taken  in  the  text  not 

*    Wright  V.  Miller,  1  Sandf.  Ch.  R.  103.  being  adverted  to,  as  the  case  did  not  call 

^    2  Dan.  Ch.  Pr.  977,  note  bv  Perkins  for  it.     [So  in  Wilson  i-.  Kenncy,  14  111. 

[*    3d    Amer.    Ed.    835];    Torrington    v.  27,  and  in  Trenchard  v.  Warner,   18  lb 

("larson,   1   Porter,  257  ;  Kirkman  v.  Van-  142.]     [*  Distinct  and  positive  allegations 

lier,  7  Ala.  217;   Ball  v.  Townsend,  6  Litt.  in  a  bill  taken  pro  coiiftsro  must  be  taken 

325;  Mosclcv  v.  Garrett,  1  J.   J.    Marsh,  as  true  without  proof,  as  in  case  of  a  judg- 

212;  Tobiu  'v.  Wilson,  3  J.  .1.  Marsh.  63;  ment  by  iiil  dint  i\t  common   law.     This 

I'ierson  i:  Mcaux,  3  A.  K.  Marsh.  4.  doctrine  applies  with  equal  force  to  bills  of 

«    Ibid.      And   see   Tate  v.   Connor,  2  review.     United  States  v.    Samperyac,   I 

Dev.  Ch.  224;   Lum  i-.  .Johnson,  3   Ircd.  Hemp.   118.] 

Ch.    70;    Cropper    v.    Burtons,   5    Leigh,         "  Ante,  \o\.  1,§18;  Atwood  v.  Ilarri- 

426 ;  Coleman  v.  Lync,  4  Rand.  454  ;  [In-  son,  5  J.  J.  Marsh.  329  ;  Iliggins  v.  Con- 


PART  VI.]       SOURCES,  MEANS,  AND  INSTRUMENTS   OF   EVIDENCE. 


239 


ground  that  the  claim  is  barred  by  lapse  of  time ;  or  answers  eva- 
sively ;  the  allegations  will  be  taken  as  admitted.^  And  where  the 
plaintiff  reads  the  defendant's  answer  in  evidence  against  him,  he 
may  also  read  so  much  of  the  bill  as  is  necessary  to  explain  the 
answer.^ 

§  277.  The  answer  of  the  defendant,  being  a  deliberate  state- 
ment on  oath,  is  evidence  against  Mm  of  all  the  matters  it  contains ; 
and  is  extremely  strong,  though  not  so  entirely  conclusive  as  to 
preclude  him  from  showing  that  it  was  made  under  an  innocent 
mistake.^  And  it  may  be  read,  notwithstanding  the  plaintiff,  by 
his  replication,  has  denied  the  truth  of  the  whole  answer.* 

§  278.  But  it  is  only  the  answer  of  a  person  sui  juris  that  can 
be  treated  as  an  admission  of  the  facts,  so  far  as  to  dispense  with 
other  proof  of  them  ;  and  therefore  the  answer  of  an  infant  by  his 
guardian,  cannot  be  read  against  the  infant,  for  he  cannot  make 
an  admission  which  ought  to  bind  him ;  though  it  may  be  read 
against  the  guardian,  for  it  is  he  alone  that  makes  oath  to  it.^ 
Nor  can  an  infant's  case  be  stated  by  the  Court  of  Chancery,  for 
the  opinion  of  a  Court  of  Law ;  because  the  admissions  in  such 


ner,  3  Dana,  1.  In  these  cases,  however, 
if  there  is  no  general  order  on  the  subject, 
it  is  usual  to  make  a  special  order,  that 
unless  an  answer  is  made  within  a  certain 
time,  the  bill  will  be  taken  pro  confesso. 
See  Cory  v.  Gerteken,  2  Mad.  43  ;  1  Dan. 
Ch.  Pr.  569 -.577  (Perkins's  ed.)  [*  3d 
Amer.  Ed.  499  -  506] ;  1  Hoffm.  Ch.  Pr. 
ch.  6,  \).  184-190.  [As  to  what  will  con- 
stitute a  due  seiwice  of  a  suhpcenn,  so  that 
a  bill  may  be  taken  pro  confesso,  see  1 
Dan.  Ch.  Pr.  498-530  (Perkins's  ed.).] 
[*  3d  Amer.  Ed.  446 -464. J 

1  Jones  V.  Person,  2  Hawks,  269 ;  Sal- 
lee  V.  Duncan,  7  Munroe,  382;  McCam- 
bell  V.  Gill,  4  J.  J.  Marsh.  87 

■■^  M'Gowen  i'.  Young,  2  Stew.  276. 

3  [*  The  admissions  in  an  answer  not 
under  oath  may  be  used  against  the  de- 
fendant, and  without  making  the  denials 
in  such  answer  evidence  for  the  defendant. 
Smith  V.  Potter,  3  Wis.  432.] 

*  [The  omission  of  the  respondent  to 
assert  a  fact  material  to  his  defence,  and 
which  is  at  the  time  within  his  knowledge, 
though  it  may  not  deprive  him  of  the  ben- 
efit of  testimony  taken  to  establish  the 
fact,  is  a  reason  for  requiring  more  strin- 
gent proof.  Goodwin  v.  McGchee,  15 
Ala.  232. 

The  answer  of  a  corporation,  under  the 
corporate  seal,  and  signed  by  its  president, 
has  the  same  force  and  effect  as  evidence  as 
the  answer  of  an  individual  not  under  oath 


would  have  in  like  cases.  Maryland,  &c. 
Co.  V.  Wingert,  8  Gill,  170 ;  State  Bank  v. 
Edwards,  20  Ala.  512.  Such  answer  can- 
not be  used  as  evidence,  but  it  puts  in  issue 
the  allegation  to  which  it  responds,  and 
imposes  on  the  complainant  the  burden  of 
proving  such  allegation.  Baltimore,  «&c. 
R.  R.  V.  Wheeling,  13  Gratt.  40.  See 
also  Lovett  v.  Steam,  &c.  Assoc,  6  Paige, 
54;  McLaw  v.  Linnville,  10  Humph.  163; 
Carpenter  v.  Prov.  Ins.  Co.,  4  How.  U.  S. 
118.]  [*  And  where  the  defendant  in  a 
bill  to  redeem  in  his  answer  expressly 
waives  all  objection  to  plaintiff  redeeming 
upon  the  payment  of  such  sum  as  shall  be 
found  due,  he  cannot  afterwards  insist  that 
the  mortgage  had  been  foreclosed  before 
the  commencement  of  the  suit.  Strong  v. 
Blanchard,  4  Allen,  538.] 

5  Eggleston  v.  Speke,  3  Mod.  558; 
Comb.  156,  2  Vent.  72,  S.  C. ;  Wrottes- 
ley  V.  Bendish,  3  P.  Wms.  237 ;  Legard 
V.  Sheffield,  2  Atk.  377 ;  Hawkins  v.  Lus- 
combe,  2  Swanst.  392 ;  Stephenson  v.  Ste- 
phenson, 6  Paige,  353  ;  Kent  v.  Taneyhill, 
6  G.  &  J.  1  ;  Harris  v.  Harris,  Id.  HI  ;  1 
Dan.  Ch.  Pr.  214;  2  Kent,  Comm.  245. 
The  infant's  answer  by  his  mother  may  be 
read  against  her.  Beasley  v.  Magrath,  2 
Sch.  &  Lefr.  34 ;  [Watson  v.  Godwin,  4 
Md.  Ch.  Decis.  25 ;  Lenox  v.  Notrebe,  1 
Hemp.  251  ;  Eaton  v.  Tillinghast,  4  R.  I. 
276  ;  Benson  v.  Wright,  4  Md.  Ch.  Decis. 
278.] 


240 


LAW   OF  EVIDENCE  IN   EQUITY. 


[part  V. 


case  would  not  be  binding  on  the  infant.^  So  the  joint  answer  of 
husband  and  wife,  though  it  may  be  read  against  both,  if  it  relates 
merely  to  the  personal  property  belonging  to  the  wife,  yet  if  it 
relates  to  the  inheritance  of  the  wife,  it  cannot  be  read  against  her, 
though  it  still  may  be  read  against  the  husband.^  But  where  the 
wife  had  represented  herself  and  transacted  as  a  feme  sole,  the 
other  parties  believing  her  to  be  such,  and  the  husband  had  con- 
nived at  the  concealment  of  the  marriage,  her  answer  was  allowed 
to  be  read  against  the  husband.^  And  where  a  feme  covert,  being 
heir-at-law  of  a  testator,  lived  separate  and  answered  separate 
from  her  husband,  pursuant  to  an  order  for  that  purpose,  her  ad- 
mission of  the  will  was  held  sufficient  ground  to  establish  it.* 

any  prosecution  against  such  defendant 
for  a  crime  or  penalty."  Verm.  Rev. 
Stat.  1839,  ch.  24,  §  25.  In  New  York,  it 
is  also  enacted  that  "  no  pleading  can  be 
used  in  a  criminal  prosecution  against  the 
party,  as  proof  of  a  fact  admitted  or  alleged 
in  such  pleading."  Amend.  Code,  §  157. 
In  Iowa,  "no  (verified)  pleading  can  be 
used  in  a  criminal  prosecution  against  the 
party ;  nor  can  a  party  be  compelled  to 
state  facts,  which,  if  true,  would  subject 
him  to  a  prosecution  tox  felony."  Code  of 
1851,  §  1748.  In  Virginia,  "evidence 
shall  not  be  given  against  the  accused,  of 
any  statement  made  by  him  as  a  witness 
upon  a  legal  examination."  Code  of 
1849,  ch.  199,  §  22.  But  it  is  perfectly 
clear,  as  a  general  rule  of  law,  that  no  party 
or  witness  can  be  compelled  to  discover  or 
to  state  any  matter  which  may  expose  him 
to  a  criminal  charge  or  penalty.  Ante, 
Vol.   1,  §  193,  n. ;  Id.  §  451  ;  Story,  Eq. 


1  Hawkins  v.  Luscombe,  2  Swanst.  392. 

2  Evans  v.  Cogan,  2  P.  Wms.  449. 
And  see  Merest  v.  Hodgson,  9  Price,  563 ; 
Elston  V.  Wood,  2  M.  dt  K.  678 ;  Ward  v. 
Meath,  2  Chan.  Cas.  172  ;  1  Eq.  Cas.  Abr. 
65,  pi.  4 ;  1  Dan.  Ch.  Pr.  [*  3d  Amer. 
Ed.  145] ;  [Lewis  v.  Yale,  4  Florida, 
418.]  The  answer  of  a  feme  executrix 
shall  not  be  read  to  charge  the  husband. 
1  Eq.  Cas.  Abr.  227;  Cole  v.  Gray,  2 
Vern.  79. 

'^  Kutter  V.  Baldwin,  1  Eq.  Cas.  Abr. 
226.  [And  where  a  married  woman 
claims  as  a  respondent,  in  opposition  to 
her  husband,  or  lives  separate  from  him, 
or  disapproves  of  the  defence  which  he 
wishes  her  to  make,  she  may  obtain  an  or- 
der of  the  Court  for  liberty  to  answer  and 
defend  the  suit  separately ;  and  in  such 
case  her  answer  may  be  read  against  her. 
Story,  Eq.  PI.  §  71  ;  Ex  parte  Halsam.  2 
Atk.  50 ;  Travers  v.  Bulkley,  I  Ves.  383 ; 
Jackson  v.  Haworth,  1  Sim.  &  Stu.  161  ; 
Wybourn  v.  Blount,  1  Dick.  R.  155; 
Com.  Dig.  Chancery,  K.  2.  Sec  also, 
Thorold  v.  Hay,  1  Dick.  410,  and  Carlton 
V.  McKenzie,  10  Ves.  442. 

*  Codriiigton  v.  E.  Shelburne,  2  Dick. 
475.  In  several  of  the  United  States,  it  is 
enacted,  that  the  answer  of,  the  defendant, 
discovering  a  concealment  of  the  proper- 
ty of  a  judgment-debtor,  to  defraud  his 
creditors,  shall  not  be  read  in  evidence 
against  sucii  defendant,  in  a  criminal 
prosecution  lor  tlie  same  fraud.  See  Neiv 
York,  Bhitchford's  Statutes,  p.  307  ;  Union 
Bank  v.  Barker,  3  Barb.  Ch.  R.  358  ;  II- 
lino'x.  Rev.  Stat.  1845,  ch.  21,  §§36,37; 
Michmun,  Rev.  Stat.  1846,  ch.  90,  §§  27, 
28;  Wisamsin,  Rev.  Stat.  1849,  ch.  84, 
§§  10,  11  ;  Arkanswi,  Rev.  Stat.  1837,  ch. 
23,  §§  130,  132.  In  Vermont,  the  statute 
provides,  that  "the  answer  of  the  defenil- 
ant  in  Chancery  siiall  not  be  used  as  evi- 
dence to  prove  any  fact  therein  stated,  in 


PI.  §§  575-578,  591-598;  Wigram  on 
Discovery,  PI.  130-133;  Litchfield  v. 
Bond,  6  Beav.  88;  Adams  v.  I'orter,  1 
Cush.  170;  1  Dan.  Ch.  Pr.  626,  627;  and 
notes  by  Perkins ;  Livingston  v.  Tomp- 
kins, 4  Johns.  Ch.  432  ;  Leggett  v.  Post- 
ley,  2  Paige,  599.  And  it  is  now  well  set- 
tled, that  if  a  witness,  claiming  the  protec- 
tion of  the  Court,  is  obliged  to  answer  in 
a  matter  tending  to  criminate  himself; 
what  he  says  must  be  considered  to  have 
been  obtained  by  compulsion,  and  cannot 
afterwards  be  given  in  evidence  against 
him.  Regina  v.  Garbctt  2  C.  &  K.  474, 
495;  Ante,  Vol.  1,  §  451.  The  .same 
principle,  it  is  conceived,  will  apply  to  mat- 
ters which  the  defendant  has  been  com- 
pelled to  disclose  in  his  answer  in  (Mian- 
cery.  But  where  the  defendant  voluntarily 
answers,  without  obtaining  the  jirotection 
of  the  Court  by  demurring  or  oilurwise, 
the  answer  nuvy  be  read  in  evidiiue 
against  him   in   a  criminal    prosecution, 


PART  VI.']      SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  241 

§  279.  There  are  also  some  exceptions  to  the  rule  in  regard  to  the 
answer  of  an  infant.  For  after  he  comes  of  age  he  may  be  per- 
mitted to  file  a  new  answer,  upon  his  affidavit  that  he  now  can 
make  a  better  defence  than  before  ;  but  he  is  bound  to  do  this,  as  he 
is  in  respect  to  the  confirmation  or  avoidance  of  other  acts  of  his 
infancy,  within  a  reasonable  time  after  his  coming  of  age,  and  with- 
out laches  ;  if,  therefore,  he  unreasonably  delays  to  apply  for  leave 
to  make  a  better  defence,  he  will  be  taken  to  have  confirmed  his 
former  answer,  and  it  may  then  be  read  against  him.^  And  if  the 
infant's  father,  being  an  heir-at-law,  and  of  age,  has  by  his  answer 
in  the  original  suit  admitted  the  due  execution  of  the  will  of  his 
ancestor,  but  died  before  the  cause  was  brought  to  an  hearing,  the 
answer  may  be  read  against  the  infant,  as  an  admission  of  the  will 
and  sufficient  to  establish  it.^ 

§  280.  But  though,  in  general,  the  answer  of  an  infant  cannot 
be  read  against  him,  except  as  above  stated,  yet  the  rule  is  differ- 
ent in  regard  to  idiots  and  persons  of  permanently  weak  intellects, 
and  those  who  by  reason  of  age  or  infirmity  are  reduced  to  a  sec- 
ond infancy  ;  their  answer,  which  is  made  by  guardian,  being 
admitted  to  be  read  against  them,  as  the  answer  of  one  of  full  age, 
made  in  person.  The  reason  of  the  difference  is  said  to  be  this, 
that  as  the  infant  improves  in  reason  and  judgment,  he  is  to  have 
a  day  to  show  cause,  after  he  comes  of  age ;  but  the  case  of  the 
others  being  hopeless,  and  becoming  worse  and  worse,  they  can 
have  no  day.^ 

Regina  v.   Goldshede,   1    C.   &    K.    657.  regular  and  valid,  and  the  Court  took  jur- 

And  see  ante,  Vol.  1,  §§  193,  225,  226.    [Al-  isdiction  of  the  infant  defendants,  though 

though  a  defendant  in  equity  is  not  bound  the  summons  had  not  been  served  upon 

to  criminate  himself  or  supply  any  link  in  them.     Vazian  v.  Stevens,  2  Duer,  635.] 

the  evidence  by  which  a  criminal  prosecu-  -    Lock  v.  Foote,  4  Sim.   132.      [And 

tion  may  be  sustained  against  himself,  he  where  a  respondent  dies  after  answering  a 

may  be  compelled,  in  answer  to  a  charge  bill,  leaving  minor  children  who  are  made 

of  fraud,  to  discover  any  act  not  amount-  parties,  the  complainant  may  nevertheless 

ing  to  a  public  offence  or  an  indictable  use  the  answer,  to  the  same  extent  as  if 

crime,  although  it  may  be  one  of  great  the  defendant  were  living.     Robertson  v. 

moral    turpitude.      Foss  v.    Haynes,    31  Parks,  3  Md.  Ch.  Decis.  65.] 

Maine,  81.  ^  \  Dan.  Ch.  Pr.  224,  225;  Leving  i;. 

i  Cecil  V.  Salisbury,  2  Vern.  224 ;  Ben-  Canely,  Prec.  Ch.  229.     And  see  2  Johns, 

netty.  Lee,  1  Dick.  89;  2  Atk.  487,529;  Ch.  235-237.     [In   Stanton  v.   Percival, 

Stephenson  v.  Stephenson,  6  Paige,  353 ;  35  Eng.  Law  &  Eq.  Rep.,  it  is  laid  down 

Mason  r.  Debow,   2  Hayw.    178.     [And  that  the  answer  of  the  committee  of  a  lu- 

where  infonts,  defendants  to  a  suit  for  par-  natic  could  not  be  read  so  as  to  bind  the 

tition  of  real  estate,  were  above  the  age  re-  lunatic.     But  it  -vvas  held,  that,  upon  a  bill 

quired  by  statute  to  authorize  them  to  ap-  of  revivor  against  the  personal  representa- 

ply  to  the  Court  for  the  appointment  of  a  tives  of  the  lunatic  after  her  death,  they 

guardian  ad  litem,  and  made  such  applica-  being  the  committee  who  made  the  answeV 

tion,  and  a  guardian  was  appointed,  ap-  in  the  original  suit,  their  original  answer 

peared,  and  answered,  the  answer  was  held  could  be  read  against  them.] 

VOL.  III.  16 


242  LAW   OF   EVIDENCE   IN   EQUITY.  •       [PART  VI. 

§  281.  Ill  regard  to  the  reading  of  the  answer  in  support  of  the 
plaintiff'' s  case,  the  rule  in  Equity  is  somewhat  different  from  the 
rule  at  Law.  For  though,  as  we  have  heretofore  seen,^  when  the 
answer  of  a  defendant  in  Chancery  is  read  against  him,  in  an 
action  at  law,  the  defendant  is  entitled  to  have  the  whole  read ; 
yet  in  Courts  of  Equity  the  rule  is,  that  "  where  a  plaintiff  chooses 
to  read  a  passage  from  a  defendant's  answer,  he  reads  all  the  cir- 
cumstances stated  in  the  passage ;  and  if  it  contains  a  reference  to 
any  other  passage,  that  other  passage  must  be  read  also  ;  but  it  is 
to  be  read  only  for  the  purpose  of  explaining,  so  far  as  explanation 
may  be  necessary,  the  passage  previously  read,  in  which  reference 
to  it  is  made.  If,  in  the  passage  thus  referred  to,  new  facts  and 
circumstances  are  introduced,  in  grammatical  connection  with 
that  which  must  be  read  for  the  purpose  of  explaining  the  refer- 
ence, the  facts  and  circumstances  so  introduced  are  not  to  be  con- 
sidered as  read."  ^  Thus,  where  the  passage  read  commenced  with 
the  words  "  before  such  demand  was  made,"  the  plaintiff  was 
ordered  to  read  the  passage  immediately  preceding,  in  which  that 
demand  was  spoken  of.^  The  defendant,  also,  may  read  any  other 
passage  in  his  answer,  connected  in  meaning  with  that  which  the 
plaintiff  has  read.*  The  want  of  grammatical  connection  will  not 
prevent  another  part  from  being  read,  if  it  is  connected  in  mean- 
ing and  is  explanatory  of  the  other ;  and,  on  the  other  hand,  a 
merely  grammatical  connection,  as,  for  example,  by  the  particles 
hut  or  and,  will  not  entitle  another  part  to  be  read,  if  it  have  no 
such  explanatory  relation.^  It  may  here  be  added,  that  where 
the  plaintiff,  in  reading  a  passage  from  a  defendant's  answer,  has 
been  obliged  to  read  an  allegation  which  makes  against  his  case, 
he  will  be  permitted  to  read  other  evidence,  disproving  such 
allegation.^ 

1  Ante,  Vol.  1,  §§  201,  202.  in  equity,  but  with  respect  to  answers  and 

2  Bartlett  v.  Giflard,  3  Russ.  157,  per  examinations  in  Chancery,  the  equity  rule 
Ld.  Eldon.  And  see  Nurse  v.  Bunn,  5  is  far  less  comprehensive  tlian  that  which 
Sim.  225  ;  Colcott  v.  Maher,  2  Moll,  is  recof,mized  at  common  law,  as  if  a  party 
310;  Ormond  v.  Hutchinson,  13  Ves.  53.  adnuts  in  his  examination  or  answer  that 

3  Ibid.  he  received  a  sum  of  money  and  adds  in 
*  Rude   V.    Whitchurch,    3    Sim.    562;     the    same    sentence    that    he    immediately 

Skerrctt  i;.  Lynch,  2  Moll.  320.  paid  it  away,  or  states  that  a  person  ^-ave 

^  Davis  V.  Spnrlinj,',  1   Russ.  &  My.  64;  him  a  sum,  as  a  present,  tlic  charfrc  and 

Tam.  199,  S.  (J.  dischar;;,;  will  he  so  blended  together  that 

«  2  Dan.  Ch.  Pr.   979  [*  .3d  Amer.  Ed.  the  one  will  not  be  admissil)!e  without  the 

836];     I'rice    i'.    Lytton,    3     Ru.ss.    206.  other;  still,  if  he  once  admits  the  receipt 

[*   "  The  rule  requirinr;  the  wliolc  state-  of  money  as  an  inde]icndcnt  fact,  he  can- 

mcnt  containini,'  tlie  admission  to  he  taken  not  refer  to  other  i)arts  of  his  examination 

together,  prevails  to  a  considerable  extent  or  answer,  much  less   to  affidavits  sworn 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  243 

§  282.  The  manner  of  statement  in  the  answer  is  sometimes 
material  to  its  effect,  as  an  admission  against  the  defendant,  dis- 
pensing with  other  proof.  For  a  mere  statement  that  the  defend- 
ant has  been  informed  that  a  fact  is  as  stated,  without  expressing 
his  belief  of  it,  will  not  be  regarded  as  an  admission  of  the  fact. 
But  if  he  answer  that  he  believes,  or  is  informed  and  believes,  that 
the  fact  is  so,  this  will  be  deemed  a  sufficient  admission  of  the  fact, 
unless  this  statement  is  coupled  with  some  qualifying  clause,  tend- 
ing to  the  contrary  ;  the  general  rule  in  Equity  on  this  point 
being,  that  tvliat  the  defendant  believes,  the  Court  will  believe.  But 
an  exception  to  this  rule  has  been  admitted  in  regard  to  the  belief 
of  an  heir-at-law  of  the  due  execution  of  a  will  by  his  ancestors ;  it 
being  the  course  of  the  Court  to  require  either  a  direct  admission, 
or  proof  in  the  usual  manner.^ 

[  *  The  same  is  true  with  respect  to  the  admission  of  the  validity 
of  a  will  by  defendants  who  are  not  heirs  at  law.^] 

§  283.  We  have  already  seen,  that  generally,  the  ansiver  of  one 
defendant  cannot  be  read  against  another,  there  being  no  issue 
between  them,  and,  therefore,  no  opportunity  for  cross-examina- 
tion ;  but  that  this  rule  does  not  apply  to  cases  where  the  defend- 
ant claims  through  him  whose  answer  is  proposed  to  be  read ;  nor 
to  cases  where  they  are  jointly  interested  in  the  transaction  in 
question,  as  partners,  or  are  otherwise  identified  in  interest.^     So 

by  him,  or  to  schedules  attached  to  his  an-  not  be  withheld  as  to  render  it  necessary 

swcr,  for  the  purpose  of  showing  that  he  that  both  should  be  read  in  conjunction, 

has    liquidated    the   amount    so    admitted  and   thus   to  prove  their  client's  case   by 

to  have  been  received,  by  separate  and  inde-  means  of  his  own  unsupported  statements." 

pendent  payments.     So,  if  a  plaintiff  reads  Taylor  on  Ev.  Vol.  1,  §  660  ;  Ridireway  v. 

a  passage  in  the  answer  as  evidence  of  a  Darwin,  7  Ves.  404,  per  Ld.Eldon  ;  Thomp- 

particular  fact,  the  defendant  cannot  read  son  v.  Lamb,  lb.  .588,  per  Id. ;  liobinson  v. 

other   parts,  even    though  grammatically  Scotney,  19  lb.  584,  per  Sir  Wm.  Grant, 

connected  with  such  passage  by  conjunc-  M.  R. ;"  Davis  v.  Spurling,  I  Russ.  &  Myl., 

tive   particles,  unless   they  be   really  ex-  per  Leach,  M.  R. ;  Bartlett  v.  Gillard,  3 

planafory  of  its  meaning,  and  if,  in  order  Russ.   156,  per  Ld.  Eldon ;    Freeman    v. 

to  understand  the  sense  of  the  passage  on  Tatham,  5  Hare,  329.] 

which  the  plaintilf  relies,  it  is  necessary  to  i  2  Dan.  Ch.  Pr.  980  [*  3d  Amer.  Ed. 

read  on  the  part  of  the  defendant  other  837]  ;     Potter    v.    Potter,     1     Ves.    274. 

portions  of  the  answer,  still  these  portions  Whether    this    exception    applies    to    an 

will  be  evidence  only  so  far  as  they  are  administrator's  belief  that  a  debt  is  due 

explanatory;    and   any    new    facts  intro-  from  the  intestate,  ^xfc/'e;  and  see  Hill  ». 

duced  therein,  though  so  immediately  con-  Binney,  6  Ves.  738. 

nected  with  the  parts  admitted  as  to  be  ^  r*  Davies  v.  Davies,  3  De  Gex  &  Sm. 

incapable  of  subtraction,  will  be  consid-  698. J 

ered  as  not  read.     This  rule  seems  to  have  ^   _^r^te,  Vol.    1,   §§    178,    180,   182;    2 

been  adopted  in  consequence  of  the  subtle  Dan.   Ch.  Pr.  981,  982  [*  3d  Amer.  Ed. 

contrivances  of  equity  draftsmen;   whose  838,  839],  and  cases  in  notes  by  Perkins, 

skill  formerly  consisted  in  so  grammati-  And  see  Crosse  v.  Bedingfield^   12   Sim. 

cally  blending  important  points  of  the  de-  35  ;    [Gilmore   v.    Patterson,    36    Maine, 

^endant's  case  with  admissions  that  could  544;  Blakeney  v.  Ferguson,  14  Ark.  641 ; 


244 


LAW   OF  EVIDENCE  IN  EQIHTY. 


[part  VI. 


where  the  defendant,  in  his  own  answer,  refers  to  that  of  his  co- 
defendant  for  further  information.^  And  though  it  is  laid  down 
as  a  general  rule,  that  the  answer  of  one  defendant  cannot  he  read 
hy  another  defendant  as  evidence  in  his  own  favor ;  ^  yet  the  uni- 
versality of  this  rule  has  been  controverted ;  and  it  has  been  held, 
that  where  the  answer  in  question  is  unfavorable  to  the  plaintiff, 
and  is  responsive  to  the  bill,  by  furnishing  a  disclosure  of  the 
facts  required,  it  may  be  read  as  evidence  in  favor  of  a  co-defend- 
ant ;  especially  where  the  latter  defends  under  the  title  of  the 
former.^ 

§  284.  The  answer  of  the  defendant  is  not  only  evidence  against 
him,  but  it  may  also,  to  a  certain  extent,  and  if  sworn  to,  be  read 
as  evidence  in  his  favor,  sufficient,  if  not  outweighed  by  opposing 
proof,  to  establish  the  facts  it  contains.^     For  it  is  to  be  observed, 


Clayton  v.  Thompson,  13  Geo.  296; 
Powles  V.  Dillev,  9  Gill,  222;  Winn  v. 
Albert,  2  Md.  Ch.  Decis.  169.] 

1  Ihid. ;  Chase  v.  Manhardt,  1  Bland. 
336 ;  Anon.,  1  P.  Wms.  301 ;  [Blakency  v. 
Ferguson,  14  Ark.  640.  And  where  the 
right  of  the  complainant  to  a  decree  against 
one  defendant  is  only  prevented  from  be- 
ing complete  by  some  questions  between  a 
second  defendant  and  the  former,  he  may 
read  the  answer  of  the  second  defendant 
for  that  purpose.  Whiting  v.  Beebe,  7 
Eng.  (Ark.)  421.] 

'■2  2  Dan.  Ch.  Pr.  981  (Perkins's  ed.), 
and  notes  [*  3d  Amer.  Ed.  838] ;  [Morris 
V.  Nix(m,  1  How.  U.  S.  119;  Farley  v. 
Bryant,  32  Maine,  474  ;  Gilmore  v.  Pat- 
terson, 36  Maine,  .544;  Cannon  v.  Norton, 
14  Verm.  178.] 

3  Mills  «.  Gore,  20  Pick.  28.  The  de- 
cision in  this  case  proceeded  on  the  gen- 
eral ground,  though  the  latter  circum- 
stance was  also  mentioned,  as  an  inde- 
pendent reason.  The  language  c^'  the 
Court  was  as  follows  :  "  An  answer  of  one 
defendant  is  not  evidence  against  a  co-de- 
fcn<lant,  for  the  plaintiff  may  so  frame  his 
bill  and  interrogatories,  as  to  elicit  evi- 
dence from  one  dcfcmlant  to  charge  an- 
other, and  to  exclude  such  matters  as 
niinht  discharge  him.  To  admit  the  an- 
swer of  the  one  to  be  evidence  again  the 
other,  under  such  circumstances,  and  when 
cross-interrogatories  could  not  be  admitted, 
would  give  to  the  plaintift'  an  undue  ad- 
vantage, against  the  manifest  principles  of 
impartial  justice.  But  whore  the  answer 
is  unfavorable  to  the  jjlaintiff,  and  conse- 
quently operates  favorably  for  a  co-defend- 
ant, the  reason  is  not  applicable.  Where 
the  plaintifis  call  upon  a  defendant,  for  a 


discovery,  requiring  him  to  answer  under 
oath  fully  to  all  the  matters  charged  in  the 
bill,  they  cannot  be  allowed  to  say  that 
his  answer  is  not  testimony.  And  so  was 
the  decision  in  Field  v.  Holland,  6  Cranch, 
8.  In  that  case  it  was  held,  that  the  an- 
swer of  Cox,  one  of  the  defendants,  was 
not  evidence  against  the  other  defendant, 
Holland,  but  that  being  responsive  to  the 
bill  it  was  evidence  against  the  plaintiff. 
And,  besides,  in  the  present  case,  the  re- 
spondent Quincy  has  a  right  to  defend 
himself  under  the  title  of  Gore.  He  is  but 
a  depositary  of  the  papers,  and  became 
such  at  the  request  of  both  parties.  He 
has  no  interest  in  the  question,  but  ia 
bound  to  deliver  the  papers  to  the  party 
having  the  title.  The  question  of  title  is 
between  the  plaintiffs  and  the  defendant 
Gore,  and  Gore's  answer,  being  evidence 
for  him  in  support  of  his  title,  is  conse- 
quently evidence  for  the  other  defendant. 
So  that  in  whatever  point  of  view  the  ob- 
jection may  be  considered,  we  think  it 
quite  clear  that  the  answer  in  question,  so 
far  as  it  is  responsive  to  the  bill,  is  e%'i- 
dence  to  be  weighed  and  consitlercd  ;  and 
that  it  is  to  be  taken  to  be  true,  unless  it 
is  contradicted  by  more  than  one  witness, 
or  by  one  witness  supported  by  corroborat- 
ing circumstances,  according  to  the  gener- 
al rule  of  equity.  The  answer  in  all  re- 
sj)eets,  in  relation  to  the  question  as  to  the 
delivery  of  the  deed  and  note,  is  directly 
responsive  to  the  allegations  in  the  bill, 
and  it  expressly' denies  that  the  deed  and 
note  were  ever  delivered  to  the  plaintiff 
Mills,  as  charged  in  the  bill."  20  Pick. 
34,  3.5;  [Miles  r.  Miles,  32  N.  II.  147; 
Powles  V.  Dillcy,  9  Gill,  222.] 

1  Clason  V.  Morris,  10  Johns.  524,  542; 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  245 

that  the  bill,  though  in  part  a  mere  pleading,  is  not  wholly  so ; 
but  where  the  older  forms  are  still  used,  it  is  the  examination  of  a 
witness  by  interrogatories.  And  in  those  States  in  which  the  in- 
terrogating part  of  the  bill  is  now  dispensed  with,  and  the  defend- 
ant is  by  the  rules  required  to  answer  each  material  allegation  in 
the  bill  as  particularly  as  if  specially  interrogated  thereto,  the  bill, 
it  is  conceived,  partakes  in  all  cases  of  the  character  both  of  a 
pleading  and  also  of  an  examination  of  the  defendant  as  a  witness. 
The  answer,  too,  so  far  as  it  sets  up  a  new  and  distinct  matter  of 
defence,  to  defeat  the  equity  of  the  plaintiff,  is  a  mere  pleading  in 
the  nature  of  a  confession  and  avoidance  at  law ;  but  when  it  only 
denies  the  facts  on  which  the  plaintiff's  equity  is  founded,  it  is  not 
only  a  pleading,  but  it  is  a  pleading  coupled  with  evidence.  In  all 
other  respects,  and  so  far  as  it  is  responsive  to  the  bill,  it  is  evi- 
dence ;  and  the  plaintiff,  having  thought  fit  to  make  the  defendant 
a  witness,  is  bound  by  what  he  discloses,  unless  it  is  satisfactorily 
disproved.^  Nor  is  the  answer  in  such  case  to  be  discredited,  nor 
any  presumption  indulged  against  it,  on  account  of  its  being  the 
answer  of  an  interested  party. ^ 

§  285.  The  test  of  the  responsive  character  of  the  answer  is  by 
ascertaining  whether  the  questions  answered  would  be  proper  to 
propound  to  a  witness  in  a  trial  at  law ;  whether  they  would  be 
relevant  to  the  complaint,  and  such  as  the  witness  would  be  bound 
to  answer ;  and  whether  the  answers  would  be  competent  testimony 
against  the  interrogating  party .^  Thus,  the  answer  is  held  compe- 
tent evidence  for  the  defendant,  of  all  those  facts,  a  statement  of 
which  is  necessary  in  order  to  make  a  full  answer  to  the  bill.*  So, 
if  an  account  is  required  by  the  bill,  and  is  given  in  the  answer,  or 
is  rendered  to  the  master,  and  explained  in  answers  to  interrogato- 
ries put  before  him,  the  answers  are  responsive,  and  are  competent 
evidence  for  the  defendant.^     So,  if  the  bill  sets  forth  only  a  part 

Union  Bank  v.  Geary,  5  Pet.  99  ;  Daniel  tiff  of  the  oath  does  not  render  it   thus 

©.Mitchell,  1  Story,  R.  172,  188;  Adams,  admissible.     Ayres  v,  Campbell,  9  Iowa, 

Doctr.    of    Equity,    21,    363    [Wharton's  213.] 

Notes].  In  Indiana,  it  is  enacted,  that  ^  Clason  v.  Morris,  10  Johns.  542; 
"  Pleadings,  sworn  to  by  either  party,  in  Field  v.  Holland,  6  Cranch,  24 ;  Wood- 
any  case,  shall  not  on  the  trial  be  deemed  cock  v.  Bennet,  1  Cowen,  743,  744,  n. ; 
proof  of  the  facts  alleged  therein,  nor  re-  Stafford  v.  Bryan,  1  Paige,  242 ;  Porsyth 
quire  other  or  greater  proof  on  the  part  of  v.  Clark,  3  Wend.  643. 
the  adverse  party  than  those  not  sworn  ^  Dunham  v,  Yates,  1  Hoffm.  Ch.  R. 
to."  Rev.  Stat.  18.52,  Vol.  2,  Part.  2,  ch.  185. 
1,  §  785,  p.  205.     [See  also,  post,  §  289.]  *  Allen  v.  Mower,  17  Verm.  61. 

1  [*'  An  answer  of  a  defendant  in  Chan-  ^  Powell  v.  Powell,  7  Ala.  582;  Chaffin 

eery,  to  he  used  against  his  co-defendant,  v.  Chaffin,  2  Dev.  &  Bat.  Ch.  255. 
must  be  under  oath,  and  waiver  by  plain- 


246 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  vl 


of  the  complainant's  case,  omitting  the  residue,  and  the  omitted 
part  is  stated  in  the  answer,  thereby  showing  a  different  case  from 
that  made  by  the  bill,  and  not  merely  by  way  of  confession  and 
avoidance,  it  is  evidence  in  the  cause.^  And  hence,  where  a  bill, 
for  the  specific  performance  of  a  contract  in  writing,  called  on  the 
defendant  to  answer  as  to  tlie  making  of  the  contract,  the  execu- 
tion of  the  instrument,  how  it  was  disposed  of,  and  when,  where, 
and  how  the  defendant  obtained  possession  of  it,  and  under  what 
pretences ;  it  was  held,  that  the  allegations  in  the  answer,  setting 
up  an  agreement  to  rescind  the  contract,  were  responsive  to  the 
bill,  and  were  evidence  for  the  defendant.^ 

§  286.  Regularly,  in  proceedings  in  Chancery,  the  defendant's 
answer  is  under  oath,  unless  the  plaintiff  chooses  to  dispense  with  it; 
in  which  case  he  moves  the  Court  for  an  order  to  that  effect; 
which,  if  the  defendant  is  under  no  incapacity,  such  as  infancy,  or 
the  like,  is  ordinarily  granted.^  If  the  parties  agree,  the  order  is 
granted  of  course ;  and  if  the  plaintiff  files  a  replication  to  an  an- 
swer not  sworn  to,  this  is  evidence  of  a  waiver  of  the  oath.*    Where 


1  Schwarz  v.  Wendell,  Walk.  Ch.  267. 

2  Woodcock  V.  Bennet,  1  Cowen,  R. 
711.  [Where  the  bill  set  out  the  making 
of  a  contract,  alleged  its  loss,  and  treated 
it  as  a  contract  in  force,  it  was  held  that 
this  did  not  permit  that  an  averment  of  its 
cancellation  by  the  respondents  in  their 
answer,  should  be  considered  as  evidence. 
Sheldon  v.  Sheldon,  3  Wis.  699.  So  where 
a  bill,  brought  to  procure  settlement  of  a 
partnership  account,  did  not  allege  any 
settlement,  but  the  answer  set  forth  a  full 
accounting  and  settlement,  it  was  held  that 
this  was  not  responsive  to  the  bill,  and 
coiUd  not  be  considered  as  evidence,  but 
that  coming  in  by  way  of  defence,  it  must 
be  regarded  in  the  nature  of  a  plea. 
Spaulding  v.  Holmes,  25  Vt.  491.  Nor 
can  the  answer,  though  responsive  and 
uncontradicted,  be  taken  to  establish  any- 
thing in  bar  of  the  relief  prayed  for,  which 
parol  testimony  would  not  be  admitted  to 
prove,  for  it  is  as  evidence  only  that  it  is 
received.  Winn  v.  Albert,  2  Mil.  Ch. 
Dccis.  169.  And  when  the  complainant 
filed  his  bill  to  reform  a  deed  given  by 
him,  alleging  that  by  the  deed  one  hun- 
dred feet  were  conveyed  on  a  certain 
street,  whereas  it  should  have  conveyed 
thirty  fcc-t  only,  and  the  respondent  in  his 
answer  admitted  that  there  wa.s  a  mistake 
in  the  deed,  but  '"  affirmed  "  that  the  deed 
should  have  conveyed  thirty-two  feet,  it 
was  held,  that  it  would  seem  that  the 
respondent  must  establish  this  allegation 


by  independent  evidence.  Busby  v.  Little- 
field,  33  N.  H.  76.  See  also  Parkes  v. 
Gorton,  3  R.  I.  27. 

But  where  the  answer  of  the  respondent 
admitted  the  indebtedness  originally  as 
charged  in  the  bill,  but  alleged  payment ; 
such  answer  being  responsive  to  the  al- 
legations and  interrogatories  of  the  bill,  it 
is  at  least  prima  facie  evidence  for  the  par- 
ty making  it,  if  "it  is  not  absolute  proof  of 
the  facts  stated,  so  as  to  require  the  usual 
countervailing  proof  in  cases  necessary  to 
outweigh  an  answer  in  Chancery.  King 
V.  Poyan,  18  Ark.  583.  See  also  Hinklo 
V.  Wanzer,  17  How.  U.  S.  3.53.] 

3  Cooper,  Eq.  PI.  325;  Story,  Eq.  PI. 
§  874  ;  2  Dan.  Ch.  Pr.  846  [*  3d  Amer. 
Ed.  748,  749,  and  notes]. 

*  Fulton  Bank  v.  Beach,  6  Wend.  36 ; 
2  Pai-'c,  307,  S.  C.  By  the  present  Code 
of  Practice  in  Aeiv  York,  if  the  ])laintitF 
makes  oath  to  his  complaint,  the  defend- 
ant is  bound  to  put  in  his  answer  under 
oath  ;  but  the  verification  to  the  answer 
may  be  omitted,  when  an  admission  of  the 
truth  of  the  allegations  might  subject  the 
party  to  prosecution  for  felony.  Amend- 
ed Code,  §  157  ;  Hill  r.  Muller,  8  N.  Y. 
Leg.  Obs.  90;  Swift  v.  llosmer,  6  N.  Y. 
Leg.  Obs.  317;  1  Code  Hep.  26,  S.  C. ; 
Alfred  r.  Watkins,  1  Code  Rep.  343,  N. 
S.  If  the  defendant  verities  his  answer  by 
oath,  all  the  subseipicnt  pleadings  must  be 
verified  in  like  manner,  whether  the  com- 
plaint is  verified  or  not.     Lin  r.  Jaquays, 


PART  VI.]       SOURCES,  MEAXS,  AND   INSTRUMENTS   OF  EVIDENCE.  247 


the  answer  is  not  sworn  to,  its  effect  and  value,  as  evidence  in  the 
cause,  is  a  point  on  which,  in  this  country,  some  difference  of 
opinion  has  been  expressed.  The  rule  in  England,  as  held  by 
Lord  Eldon,  was  that  the  defendant's  answer  without  oath  gave 
the  same  authority  to  the  Court  to  look  at  the  circumstances, 
denied  or  admitted  in  the  answer  so  put  in,  for  the  purpose  of  ad- 
ministering civil  justice  between  the  parties,  as  if  it  was  put  in 


2  Code  Rep.  29  ;  Levi  v.  Jakeways,  Id. 

69  ;  Code,  ubi  supra. 

[In  MassachiLietts,  by  the  fifth  rule  of 
Chancery  Practice,  "  When  a  bill  shall  be 
filed  other  than  for  discovery  only,  the 
complainant  may  waive  the  necessity  of 
the  answer  being  made  on  the  oath  of  the 
defendant ;  and  in  such  case  the  answer 
may  be  made  without  oath,  and  shall  have 
no  other  or  greater  force  as  evidence  than 
the  bill.  No  exception  for  insufficiency 
can  be  taken  to  such  answer."  In  Bing- 
ham V.  Yeomans,  10  Cush.  58,  it  was  de- 
cided that  this  waiver  must  be  made  by 
the  complainant  in  his  bill  before  answer, 
and  that  he  cannot  do  it  afterwards.  The 
whole  case  was  thus  stated  by  Shaw,  C. 
J. :  "  This  is  a  bill  in  equity  against  a 
mortgagee,  to  redeem  a  mortgage,  and 
praying  for  an  account.  The  bill  is  in 
the  usual  form,  not  waiving  the  respon- 
dent's oath  ;  to  which  a  sworn  answer  was 
duly  made.  When  the  case  came  before 
the  Judge  at  nisi  prius,  the  complainant 
moved  to  waive  the  requirement  of  a 
sworn  answer,  and  that  the  respondent's 
answer  might  be  stricken  out.  The  mo- 
tion was  overruled,  and  the  question  re- 
served for  the  whole  Court. 

"  If  the  complainant  in  equity  would 
waive  an  answer  on  oath,  as  he  may  do 
under  the  tifth  rule  of  chancery  practice, 
he  must  do  it  by  his  bill  and  before  an- 
swer. In  that  case,  the  respondent  may 
make  his  answer  with  reference  solely  to 
his  own  grounds  of  defence,  and  without 
regard  to  the  interrogating  part  of  the 
bill ;  and  to  such  answer  there  can  be  no 
exception  taken.  Or,  the  complainant 
might  require  an  answer  on  oath,  as  he 
does  if  not  waived,  and  compel  a  fall 
discovery  under  a  severe  penalty;  but 
having  done  so,  the  respondent  is  by  law 
entitled  to  the  benefit  of  his  answer  as 
evidence,  so  far  as  responsive.  If  it  were 
otherwise,  the  effect  would  be,  that  after  a 
sworn  answer  filed,  the  complainant  might 
speculate  un  the  relative  advantage  or  dis- 
advantage, on  the  one  hand,  of  benefit  to 
himself  of  the  discoveries,  and,  on  the 
other,  of  benefit  to  the  defendant  of  his 
answer,  as  evidence,  and  admit  or  reject  it 
accordingly,  at  his  own  election.      This 


would  be  an  unfair  advantage,  and  inequi- 
table ;  and  the  Court  are  of  opinion  that 
the  motion  of  the  complainant  to  strike 
out  the  oath  from  the  respondent's  answer 
was  rightly  overruled."  In  Chace  v. 
Holmes,  2  Gray,  4-31,  it  was  held,  that  the 
complainant  who  had  not  waived  the  oath 
of  the  respondent  in  his  bill,  could  not  do 
so  after  a  demuiTer  had  been  filed  by  the 
respondent  and  then  withdrawn. 

In  Gerrish  v.  Towne,  3  Gray,  91,  the 
complainant  in  his  bill  waived  the  oath  of 
the  respondent  to  his  answer.  The  re- 
spondent, notwithstanding  this  express 
waiver,  answered  under  oath.  The  com- 
plainant, without  moving  the  Court  for 
the  cancellation  of  the  oath,  filed  a  general 
replication.  It  was  held,  that  though  a 
general  replication  waves  all  insufiieiencies 
and  defects  in  the  answer,  yet  that  it  does 
not  at  all  affect  the  question  of  its  com- 
petency as  proof  of  the  facts  and  state- 
ments it  contains ;  and  that  such  is  the 
necessary  effect  of  the  rule  itself,  the  pro- 
vision being  that  when  the  complainant 
waives  the  answer  on  oath,  "  the  answer 
may  be  made  without  oath,  and  shall  have 
no  other  or  greater  force  as  evidence  than 
the  bill." 

In  Maryland,  under  the  Act  of  1852, 
ch.  133,  if  the  bill  does  not  require  the 
answer  on  oath,  the  answer  of  the  respon- 
dent on  oath  is  not  evidence  against  the 
complainant.  Winchester  v.  Baltimore, 
&c.  R.  R.,  4  Md.  231.  In  Indiana,  if  the 
complainant  waive  the  respondent's  oath 
to  his  answer,  pursuant  to  the  statute,  the 
effect  of  the  denial  in  the  answer  is  to  re- 
quire the  allegations  in  the  bill  to  be  sus- 
tained by  a  preponderance  of  evidence. 
Moore  f.'McClintock,  6  Ind.  209.  In  such 
case,  two  witnesses  are  not  required  to 
prove  the  matter  put  in  issue  by  the  denial 
in  the  answer,  but  the  evidence  of  one  wit- 
ness is  entitled  to  the  same  weight  as  it 
would  have  in  establishing  the  affirmative 
of  an  issue  in  law.  Peck  v.  Hunter,  7  lb. 
295  ;  Larsh  v.  Brown,  3  lb.  234.  In  loioa, 
a  defendant  in  equity  may  answer  under 
oath,  although  the  bill  expressly  waives  it, 
and  such  answer  will  be  received  in  evi- 
dence.    Armstrong  v.  Scott,  3  Iowa,  433.] 


248  LAW   OF   EVIDENCE   IN  EQUITY.       '  [PART  VI. 

upon  the  attestation  of  an  oath.i     j^  a  case  in  the  Supreme  Court 
of  the  United  States,  which  was  an  injunction  bill,  filed  upon  the 
oath  of  the  complainant,  to  which  an  answer,  by  a  corporation, 
was  put  in  without  oath,  the  question  was  as  to  the  amount  of 
evidence  necessary  to  outweigh  the  answer.      The  Court  said,  that 
the  weight  of  such  answer  was  very  much  lessened,  if  not  entirely 
destroyed,  as  matter  of  evidence,  when  not  under  oath  ;  and,  in- 
deed, that  they  were  inclined  to  adopt  it  as  a  general  rule,  that  an 
answer  not  under  oath,  is  to  be  considered  merely  as  a  denial  of 
the  allegations  in  the  bill,  analogous  to  the  general  issue  at  law, 
so  as  to  put  the  complainant  to  the  proof  of  such  allegations.    But 
the  cause  was  not  decided  on  this  ground,  there  being  sufficient 
circumstances  in  the  case,  corroborating  the  testimony  of  the  op- 
posing witness,  to  outweigh  the  answer,  even  if  it  had  been  sworn 
to.2     And  Mr.  Chancellor  Walworth,  in  a  case  before  him,  is  re- 
ported to  have  held,  that  an  answer,  not  sworn  to,  was  not  of  any 
weight  as  evidence  in  the  cause.^     But  Mr.  Justice  Story,  speak- 
ing of  such  an  answer,  was  of  opinion,  that  it  is  by  no  means  clear 
that  it  is  not  evidence  in  favor  of  the  defendant  as  to  all  facts, 
which  are  not  fully  disproved  by  the  other  evidence  and  circum- 
stances in  the  case,  nor  clear  that  it  ought  not  to  prevail,  where 
the  other  evidence  is  either  defective,  obscure,  doubtful,  or  unsat- 
isfactory.    And  it  may  well  be  suggested,  he  adds,  whether  the 
plaintiff  has  a  right  to  dispense  with  the  oath,  and  yet  to  make 
the  answer  evidence  in  his  own  favor  as  to  all  the  facts  which 
it  admits,  and  exclude  it  in  evidence  as  to  all  the  facts  which 
it  denies.* 

1  Curling  v.  Townsend,  19  Ves.  628.  the  defendant  is  entitled,  by  the  rules  of 
This  was  an  application  hy  the  defendant  law,  to  have  his  answer  considered  in  evi- 
for  leave  to  file  a  sui)plemcntal  answer ;  dence,  though  not  sworn  too,  the  question 
in  other  words,  to  deprive  the  plaintiff  of  has  sometimes  been  raised,  whether  the 
the  benefit  to  which  he  was  entitled  from  Court  can,  by  any  rule  of  practice,  exclude 
the   answer   which   was    already    on    the  it. 

record,  but  was  without  oath.    2  Dan.  Ch.         *  Story,  Eq.  PI.  §  ST.")  a.     Subsequently 

Pr.  8^8  [*.'5d  Amcr.  Ed.  7.50].  to  the  publication  of  the  work  here  cited, 

2  Union  Bank  of  Georgetown  v.  Geary,  the  same  point  was  adverted  to  by  Mr 
5  Pet.  99,  112.     [See  ante,  §  277,  note.]  Justice  Wayne,  in  delivering  the  opinion 

8  Bartlctt  V.   Gale,  4   Paige,  503.     And  of   the   Court   in   Patterson   v.   Games,   6 

see,   accordingly,    Willis  c.   Henderson,  4  How.  S.  C.  R.  t^SS  ;  in  wliich  he  cited  and 

Scam.  13.     In  some  of  the  United  States  reaffirmed  the  ot)scrvations  of  the   learned 

it  is  enacted,  that  when  the  plaintiff  waives  Judge  in   5   Pet.   112,  above  quoted,  and 

his  right  to  a  sworn  answer,  the  answer  also  that  of  Mr.  Chancellor  Walworth,  in 

shall   have  no    more  weight   as   evidence  Bartlett  v.  Gale,  snpm.    But  here,  too,  the 

than   the  bill.     See   Mirhiqnn,   Kev.   Stat,  point  was  not  raised  in  argument,  nor  was 

184(5,  ch.  90,  §  .31  ;  ///i;io/.s-,  Rev.  Stat.  184.'),  it  judicially  before   the   C^uirt,   the   tcsti- 

ch.  21,§21.   '  See  also  ,U((.s.sut7iH.sc«i-,  Ueg.  moiiy  of  the  opposing  witness   being,  as 

Gen.  in  Chan.  24  Pick.  411,  Keg.  5.     If  the  judge  remarked,  so  strongly  corrob- 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  249 

[  *  It  seems  to  be  settled  in  the  practice  of  some  of  the  American 
States,  that  although  the  statute  allow  the  plaintiff,  in  a  bill  in 
Equity,  to  dispense  with  the  oath  of  the  defendant  in  his  answer  ; 
and  that  in  such  cases  the  answer  will  be  sujfficient  in  all  ordinary 
cases,  without  oath  ;  yet  it  will  be  requisite,  in  order  to  sustain  a 
motion  to  dissolve  an  injunction,  that  the  answer  should  be  sworn 
to.^  There  can  be  no  question  upon  principle,  it  would  seem, 
that  the  answer  of  the  defendant  not  upon  oath,  although  respon- 
sive to  the  bill,  is  to  be  treated  merely  in  the  nature  of  a  plea  of 
denial,  by  way  of  special  traverse.  And  it  would  be  of  the  same 
effect  precisely,  if  it  were  a  mere  general  issue.  We  somewhat 
marvel  that  any  Judge,  or  text  writer,  could  ever  have  entertained 
any  serious  doubt  in  regard  to  this.  It  must  arise  from  the  gen- 
eral practice  of  Courts  of  Equity  not  to  decree  relief  upon  a  bill 
which  was  flatly  denied  by  the  respondent  upon  oath,  and  only 
sustained  by  the  oath  of  one  witness.  It  consequently  becomes  al- 
most matter  of  course,  to  allow  that  extent  of  force  to  the  answer, 
'per  se,  not  reflecting  always,  whether  it  is  to  the  answer,  as  testi- 
mony or  as  a  pleading.  But  a  moment's  consideration  must  con- 
vince all,  that  this  effect  results  from  the  answer,  as  counter 
evidence  only.  It  is  upon  the  same  ground,  that  no  weight  is  to 
be  attached  to  the  answer  of  a  defendant,  as  executor,  or  in  an 
official  capacity,  or  as  agent  of  a  corporation,  or  in  any  form, 
where  not  purporting  to  be  made  upon  personal  knowledge.  This 
view  is  strongly  confirmed  by  the  opinions  of  Lord  Eldon,^  Thomp- 
son, J.,^  and  Chancellor  Walworth.^] 

§  287.  The  general  rule  that  the  defendant's  answer,  responsive 
to  the  bill,  is  evidence  in  his  favor,  is  subject  to  several  limitations 
and  exceptions.  For  though,  inform,  it  is  responsive  to  an  interrog- 
atory in  the  bill,  yet,  if  it  involves  also,  affirmatively,  the  assertion 
of  a  right,  in  opposition  to  the  plaintiff's  demand,  it  is  but  mere 
pleading,  and  is  therefore  not  sufficient  to  establish  the  right  so  as- 
serted.^   The  answer,  also,  must  not  be  evasive ;  it  must  be  direct 

orated  by  other  proofs,  that  the  answer  i  [  *  Mahaney  v.  Lazier,  16  Md.  69. 

would  be  disproved,  if  it  had  been  sworn  ^  Curling  v.  Townsend,  19    Ves.    628, 

to.     The  attention  of  the  Coiiri  does  not  629. 

seem  to  have  been  drawn  to  the  doubt  sug-  ^  Union  Bank  of  Georgetown  v.  Geary, 

gested  by  Mr.  Justice  Story.     In  Babcock  5  Peters,  R.  99,  110- 112. 

V.   Smith,   22   Pick.  61,   66,   tlie   question  *  Smith  z;.  Clarke,  4  Paige,  P.  368.] 

whether  the  depositions  of  co-defendants  ^  Payne  v.  Coles,  1   Munf.  373  ;  Clarke 

were  admissible  for  each  other  Avhere  the  v.  White,  12  Pet.  178,  190  ;  [Miles  v.  Miles, 

plaintiff  had  waived  the  oath  to  their  an-  32  N.  H.  147  ;  Busley  v.  Littlefield,  33  lb. 

swers  was  raised,  but  not  decided.  76;    Sjjaulding  v.  Hohnes,   25   Vt.  491; 


250  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

and  positive,  or  so  expressed  as  to  amount  to  a  direct  and  positive 
denial  or  affirmation  of  the  facts  distinctly  alleged  and  charged  or 
denied  in  the  bill,  in  order  to  have  weight  as  evidence  in  his  own 
favor,  in  regard  to  those  facts. ^  And  this  is  especially  true  as  to 
facts  charged  in  the  bill  as  being  the  acts  of  the  defendant,  or 
within  his  personal  knowledge.^  If,  however,  they  are  such,  that 
it  is  probable  he  cannot  recollect  them  so  as  to  answer  more  posi- 
tively, a  denial  of  them  according  to  his  knowledge,  recollection, 
and  belief,  will  be  sufficient.^  And  no  particular  form  of  words  is 
necessary  ;  it  being  sufficient  if  the  substance  is  so.*  But  if  the 
defendant  professes  a  want  of  knowledge  of  the  facts  alleged  in  the 
bill,  the  answer  is  not  evidence  against  those  allegations,  even 
though  he  also  expressly  denies  them.^  So,  if  the  fact  asserted  by 
the  defendant  is  such,  that  it  is  not  and  cannot  be  within  his  own 
knowledge,  but  is  in  truth  only  an  expression  of  his  strong  con- 
viction of  its  existence,  or  is  what  he  deems  an  infallible  deduction 
from  facts  which  were  known  to  him ;  the  natiire  of  his  testimony 
cannot  be  changed  by  the  positiveness  of  his  assertion,  and  there- 
fore the  answer  does  not  fall  within  the  rule  we  are  considering.^ 
The  answer  of  an  infant,  also,  by  his  guardian,  ad  litem,  though  it 
be  responsive  to  the  bill,  and  sworn,  to  by  the  guardian,  is  not  evi- 
dence in  his  favor ;  for  it  is  regarded  as  a  mere  pleading,  and  not 
as  an  examination  for  the  purpose  of  discovery.'' 

Ives  V.  Hazard.  4  R.  I.  14  ;  Fisler  v.  Porch,  Halloway,  8  Blackf.  45  ;  [Loomis  v.  Fay, 

2  Stockt.  243  ;  Dean  v.  Moody,  31  Miss.  24  Vt.  240 ;  Wooley  v.  Chamberlain,  lb. 

617  ;  Roberts  v.  Totten,  8  Enj,'.  609  ;  Pugh  270.] 

V.  Pugh,  9  Ind.  132;  Hunt  v.  Thorn,  2  «  Clark  v.   Van  Riemsdyk,  9   Cratich, 

Mich.  213  ;  Smith*.  Potter,  3  Wis.  432.]  160,  161  ;  Pennington  v.  Gittings,  2  G.  & 

1  Dan.  Ch.  Pr.  830,  831,984,  and  notes  J.  208.  And  see  Copeland  v.  Crane,  9 
by  Perkins  [*  .3d  Am.  Ed.  736,  737,  841,  Pick.  73;  Garrow  v.  Carpenter,  1  Port. 
842];  Wiikins  v.  Woodfin,  5  Munf.  183;  3.-)9  ;  Waters  o  Creagh,  4  Stew.  &  Port. 
Sallee  v.  Duncan,  7  Monr.  382  ;  Ilutchin-  310  ;  Lawrence  v.  Lawrence,  4  Pibb.  3.')7  ; 
son  V.  Sinclair.  Id.  291.  And  see  McGuf-  Harlan  v.  Wingate,  2  J.  J.  Mar.sh.  138; 
fie  V.  Planter's  Bank,  1  Prcem.  Ch.  383  ;  Hunt  v.  Rousmanier,  3  Mason,  294  ;  Pry- 
Amos  ?'.  Ilcatherby,  7  Dana,  45;  [Stoufter  rear  v.  Lawrence,  •'J  Gilm.  825;  Dugan  v. 
D.  Macbcn,  16  111.  .'j.')3  ;  Dinsmoorf.  Hazel-  Gittings,  3  Gill.  138;  Newman  v.  James, 
ton,  2  Poster,  53.5.]  12  Ala.  29.     [Wiicre  an  answer,  although 

-  Hall  V.  Wood,  1  Paige,  404  ;   Sloan  v.  responsive  to  the  bill,  denies  circumstances 

Little,    3    Paige,    103;    Knickerbaeker    v.  to  be  fraudulent  as  alleged,  ycH  contains 

Harris,  1  I'aige,  209,  212.  statements     from    which     no    rea.sonable 

3  ll)id.  doubt  can  be  entertained  of  fraud,  the  cir- 

*  Utica   Ins.    Co.   v.  Lynch,   3    Paige,  cumstances  of  tlie  answer  will  destroy  the 

210.  effect  of  its  denial.      Wheat  v.  Moss,   16 

fi  Drurv  v.  Connor,  6  H.  &  J.  288;  Bai-  Ari<.  243.] 

lev  T.  Stiles,  2  Green,  Ch.  245  ;  McGufHe  "  Bulklev  r.  Van  Wyck,  5  Paige,  536. 

V.'  Planter's    Bank,    1    Precm.    Ch.    383  ;  [*  Chaffin  V.   Kimball,  "23  111.  36  ]      And 

Town  r.  Nccdbam,  3  Paige,  54()  ;  Dunham  see    Ste])hen.son    v.   Stc])lienson,   6  Paige, 

V.  Gates,  1  Holfm.  Cii.  U.  185  ;  Whitting-  353.     [Sec  a/i^e,  §  278,  and  notes.] 
ton  V.  Hoi>erts,  4  Monr.  173  ;  The  State  v. 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  251 

§  288.  But  in  order  that  the  answer  may  be  evidence  for  the 
defendant,  it  is  not  always  necessary  that  it  should  he  responsive  to 
the  hill ;  for  where  no  replication  has  been  put  in,  and  the  cause  is 
heard  upon  the  bill,  answer,  and  exhibits,  the  answer  is  considered 
true  throughout,  in  all  its  allegations,  and  whether  responsive  or 
not ;  upon  the  plain  and  obvious  principle  that  the  plaintiff,  by  not 
filing  a  replication  and  thereby  putting  the  facts  in  issue,  has  de- 
prived the  defendant  of  the  opportunity  to  prove  them.^  And  if, 
after  a  replication  is  filed,  the  cause  is  set  down  for  a  hearing  on 
the  bill  and  answer,  by  the  plaintiff,  or  by  consent,  the  answer  is 
still  taken  as  true,  notwithstanding  the  replication.^  And  where 
the  defendant  states  only  that  he  believes,  and  hopes  to  be  able  to 
prove,  the  facts  alleged  in  the  answer,  the  same  rule  prevails,  and 
the  facts  so  stated  are  taken  for  truth.^  If,  where  the  cause  is 
heard  upon  bill  and  answer,  it  appears  that  the  plaintiff  is  entitled 
to  a  decree,  he  must  take  it  upon  the  qualifications  stated  in  the 
answer.* 

§  289.  Subject  to  the  preceding  qualifications  and  exceptions, 
the  known  rule  in  Equity,  as  before  intimated,^  is  "  that  an  answer, 
which  is  responsive  to  the  allegations  and  charges  made  in  the  bill, 
and  contains  clear  and  positive  denials  thereof,  must  prevail ;  un- 
less it  is  overcome  by  the  testimony  of  two  witnesses  to  the  sub- 
stantial facts,  or  at  least,  by  one  witness,  and  other  attendant 
circumstances  which  supply  the  want  of  another  witness,  and  thus 
destroy  the  statements  of  the  answer,  or  demonstrate  its  incredi- 

1   2  Dan.   Ch.   Pr.    1188,    1189    [  *  3d  Stat.  1841,  ch.  87,  §  31.     So  also  is  the 

Amer.  Ed.  998]  ;  Id.  984,  and  note  by  Per-  statute  law  in  New  Jersei],  Rev.  Stat.  1846, 

kins  [*3d  Amer.  Ed.  839-843] ;    Dale  v.  tit.  33,  ch.  1,  §  38.     And  in  Missouri,  Rev. 

McEvers,   2   ('owen,  118,   126.      And  see  Stat.  1845,  eh.  137,  §  29.     And  in  Illinois, 

Barker  f.  Wyld,  1  Vern.  139;  Kennedy?;.  Rev.  Stat.  184.5,  ch.   21,   §  32.     [Gates  v. 

Baylor,  1    Wash.   162;  Pierce  v.   West,  1  Adams,  24  Vt.  70;  Warren  v.  Twiley,  10 

Pet.  C.  C.  R.  3.51  ;   Slason  v.  Wright,  14  Md.  39  ;  Lampley  v.  Weed,  27  Ala.  621  ; 

Verm.  208;  Leeds  v.  Marine  Ins.  Co.,  2  Gwin  v.  Selby,  5  Ohio,  N.  S.  97;]  f*Per- 

Whcat.  380.     In  Arkansas,  it  is  enacted  kins  i).  Nichols,  11  Allen,  544.] 

that  "  when  any  complainant  shall  seek  a  ^  Moore   v.   Hylton,   1    Dev.    Ch.  429  ; 

discovery  respecting  the  matters  charged  Carman  v.  Watson,  1   How.  Miss  R.  333  ; 

in  the  bill,  the  disclosures  made  in  the  an-  Reece  v.  Darley,  4  Scam.  159  ;  [White  v. 

swer  shall  not  bo  conclusive,  but,  if  a  repli-  Crew,   16   Geo.  416  ;  Coulson  f.  Coulson, 

cation   be  tiled,   may   be   contradicted    or  5  Wis.  79.]     [*  And  when  a  case  in  equity 

disproved,  as  other  testimony,  according  to  is  set  down  for  hearing  on  the  defendant's 

the  practice  of  Courts  of  Chancery."  Rev.  plea,  evidence  previously  taken  by  the  de- 

Stat.  1837,  ch.  23,  §  49.     So  is  the  law  in  fendant  cannot  be  considered  hy  the  court. 

Missouri,  Rev.   Stat.   1845,  ch.  137,  §  30.  Hancock  c.  Carlton,  6  Gray,  39.] 

And  in   Illinois,   Rev.  Stat.   1845,  ch.  21,  ^  Brinckerhoff  v.  Brown,  7  Johns.  Ch. 

§  33.  In  Ohio,  it  is  enacted  that,  at  a  hear-  217,  223. 

ing  on  bill  and  answer,  the  answer  may  be  *  Doolittle  v.  Gookin,  10  Verm.  265. 

contradicted  by  matter  of  record  referred  ^  Supra,  §  277.    And  see  ante.  Vol.  1, 

to  in  the  answer,  but  not  otherwise.     Rev.  §  260. 


252 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  vi. 


bility  or  insufficiency  as  evidence."  ^     From  the  manner  in  which 
this  rule  is  stated  both  here  and  elsewhere,  it  might  at  first  view 


1  Daniel  v.  Mitchell,  1  Story.  K.  172, 
188,  per  Story,  J.  ;  Lenox  v.  Prout,  3 
Wheat.  520.  And  see  2  Dan.  Ch.  Pr. 
98.3,  and  cases  in  Mr.  Perkins's  note 
[  *  3d  Amer.  Ed.  840]  ;  2  Story,  Eq.  Jur. 
§  1.528.  In  Iowa,  every  pleading  required 
to  be  made  under  oath,  it  sworn  to  by  the 
party  himself,  is  considered  as  evidence  in 
the  cause,  of  equal  weight  with  that  of  a 
disinterested  witness.  Rev.  Code,  1851, 
§  1745;  and  every  affirmative  allegation 
duly  pleaded  in  the  petition,  if  not  respond- 
ed to  in  the  answer,  is  taken  as  true.  Id. 
§  1742.  But  an  answer,  though  respon- 
sive to  the  bill,  and  denying  its  charges, 
and  n«jt  outweighed  by  two  opposing  wit- 
nesses, or  by  one  witness  and  other  equiv- 
alent testimony,  is  not  conclusive  upon  a 
Jury.  Hunter  v.  Wallace,  1  Overton,  239. 
Li  Indiana,  it  is  enacted,  that  pleadings, 
sworn  to  by  either  party,  in  any  case,  shall 
not,  on  the  trial,  be  deemed  proof  of  the 
facts  alleged  therein,  nor  require  other  or 
greater  proof  on  the  part  of  the  adverse 
party,  than  those  now  sworn  to.  Rev. 
Stat.  1852,  Part  2,  ch.  1,  §  75.  In  Missis- 
sippi, the  rule,  requiring  more  than  one 
witness  to  overthrow  an  answer  in  Chan- 
cery, is  abolished  in  all  cases  where  the 
bill  is  sworn  to  by  the  complainant ;  and 
it  is  enacted,  that  the  answer  shall  in  no 
case  receive  greater  weight  and  credit,' 
upon  the  hearing,  than,  in  view  of  the 
interest  of  the  party  making  it,  and  the 
circumstances  of  the  ease,  it  may  be  fairly 
entitled  to.  Stat.  Feb.  15,  1838,  §  6  ;  Aid. 
&  Van  Hoes  Dig.  p.  847.  In  Arkansas, 
the  answer  to  a  bill  of  discovery  is  not  con- 
clusive ;  but  on  filing  a  replication,  the 
plaintiff  may  contradict  or  disprove  it,  as 
in  other  eases,  according  to  the  course  of 
practice  in  Chancery.  Rev.  Stat.  1837, 
ch.  23,  §  49.  In  3IicJii(/(tn,  in  bills  other 
tiian  for  discovery,  the  plaintiff' may  waive 
the  defendant's  oath  as  to  tiie  answer  ;  in 
which  case  the  answer  may  be  made  with- 
out oath,  and  shall  have  no  other  or  great- 
er force,  as  evidence,  than  tiie  bill.  Rev. 
Stat.  184G,  ch.  90,  §  31.  In  Alabama,  the 
law  is  the  same.  Code  of  Alabama  (1852), 
§  2877.  It  is  also  the  same  in  Illinois. 
Rev.  Stat.  1845.  ch.  21,  §  21.  In  Carjien- 
ter  V.  Prov.  Wash.  Ins.  (Jo.,  4  How.  S.  C. 
K.  185,  the  rule  stated  in  the  text  was  re- 
viewed and  conimented  on,  by  Woodbury, 
J.  "  When!  an  answer,"  he  observed,  "  is 
responsive  to  a  bill,  and  like  this,  denies  a 
fact  unequivocally  and  under  oath,  it  must, 
in  most  ca.ses,  be  proved  not  only  by  the 
testimony  of  one  witness,  so  as  to  neutral- 
ize that  denial  and  oath,  but  by  some  ad- 


ditional evidence,  in  order  to  turn  the 
scales  for  the  plaintiff.  Daniel  r.  Mitchell, 
1  Story,  Rep.  188;  Higbie  v.  Hopkins,  1 
Wash.  C.  C.  R.  230 ;  The  Union  Bank  of 
Georgetown  v.  Geary,  5  Peters,  99.  The 
additional  evidence  must  be  a  second  wit- 
ness, or  verv  strong  circumstances.  '  Wash. 
C.  C.  R.  230 ;  Hughes  v.  Blake,  1  Nason, 
C.  C.  R.  514;  3  Gill  &  Johns.  425;  1 
Paige,  239  ;  3  Wend.  532  ;  2  Johns.  Ch. 
R.  92.  Clark's  Ex'rs  v.  Van  Riemsdyk, 
9  Cranch,  153,  says,  'with  pregnant  cir- 
cumstances.' Neale  v.  Hagthorp,  3  Bland's 
Ch.  567  ;  2  Gill  &  Johns.  208.  But  a 
part  of  the  cases  on  this  subject  introduce 
some  qualifications  or  limitations  to  the 
general  rule,  which  are  urged  as  diminish- 
ing the  quantity  of  evidence  necessary 
here.  Thus,  in  9  Cranch,  160,  the  grounds 
of  the  rule  are  explained  ;  and  it  is  thought 
pro{)er  there,  that  something  should  be  de- 
tracted from  the  weight  given  to  an  an- 
swer, if  from  the  nature  of  things  the 
respondent  could  not  know  the  truth  of 
the  matter  sworn  to.  So.  if  the  answer  do 
not  deny  the  allegation,  but  only  express 
ignorance  of  the  ftiet,  it  has  been  adjudged 
that  one  positive  witness  to  it  may  suffice. 
1  J.  J.  INIarshall,  178.  So,  if  the  answer  be 
evasive  or  equivocal,  4  J.  J.  Marshall,  213  ; 
1  Dana,  174  ;  4  Bibb.  358.  Or  if  it  do  not 
in  some  way  deny  what  is  alleged.  Knick- 
erbocker V.  Harris,  1  Paige,  212.  But  if 
the  answer,  as  here,  explicitly  denies  the 
material  allegation,  and  the  respondent, 
though  not  personally  conusant  to  all  the 
particulars,  swears  to  his  disbelief  in  the 
allegations,  and  assigns  reasons  for  it,  the 
complainant  has,  in  several  instances,  been 
required  to  sustain  his  allegation  by  more 
than  the  testimonv  of  one  M'itness.  (3  Ma- 
son's C.  C.  R.  294.)  In  Coale  v.  Cha.se,  I 
Bland,  136,  such  an  answer  and  oath  by  an 
administrator,  was  held  to  be  sulHcient  to 
dissolve  an  injunction  for  matters  alleged 
against  this  testator.  So  it  is  sufficient 
for  that  purpose  if  a  corporation  deny  the 
allegation  under  seal,  though  without  oath 
(Haight  i\  Morris  A([ueduct,  4  Wash.  C. 
C.  R.  601)  ;  and  an  administrator  denying 
it  under  oath,  founded  on  his  disbelief, 
from  information  communicated  to  him, 
will  throw  the  burden  of  ])nK)r  on  the 
plaintiff'  beyond  the  testimony  of  one  wit- 
ness, though  not  ,so  much  beyond  as  if  he 
swore  to  matters  within  his  personal 
knowledge.  3  Bland's  Ch.  567,  note;  1 
Gill  &  Johns.  270  ;  Pennington  v.  Git- 
tings,  2  Gill  &  Johns.  208.  But  wh.at 
seems  to  go  further  than  is  necessary  for 
this  case,  it  has  been  adjudged,  in  Salmon 


PART  VI.]       SOURCES,  MEANS,  AND  INSTRUMENTS   OF   EVIDENCE.  253 

appear  as  though  the  testimony  of  a  tvitness  were  indispensable, 
and  that  documentary  evidence,  however  weighty,  would  not  alone 
suffice  to  counterpoise  the  answer.  But  it  is  not  so.  The  rule, 
when  stated  as  above,  applies  particularly  to  the  case  of  an  answer, 
opposed  only  by  the  testimony  of  one  witness  ;  in  which  case  the 
Court  will  neither  make  a  decree,  nor  send  it  to  a  trial  at  law.-^ 
But  if  there  is  sufficient  evidence  in  the  cause  to  outweigh  the 
force  of  the  answer,  the  plaintiff  may  have  a  decree  in  his  favor. 
This  sufficient  evidence  may  consist  of  one  witness,  with  additional 
and  corroborative  circumstances  ;  and'  these  circumstances  may 
sometimes  be  found  in  the  answer  itself ;  ^  or  it  may  consist  of  cir- 
cumstances alone,  which,  in  the  absence  of  a  positive  witness,  may 
be  sufficient  to  outweigh  the  answer  even  of  a  defendant  who 
answers  on  his  own  knowledge.^     Thus,  on  the  one  hand,  it  has 


V.  Clagett,  3  Bland,  141,  165,  that  the  an- 
swer of  a  corporation,  if  called  for  by  a 
bill,  and  it  is  responsive  to  the  call,  though 
made  by  a  '  corporation  aggregate,  under 
its  seal,  without  oath,'  is  competent  evi- 
dence, and  '  cannot  be  overturned  by  the 
testimony  of  one  witness  alone.'  We  do 
not  go  to  this  extent,  but  see  no  reason  why 
such  an  answer,  by  a  corporation,  under  its 
seal,  and  sworn  ro  by  the  proper  officer, 
with  some  means  of  knowledge  on  the  sub- 
ject, should  not  generally  impose  an  obliga- 
tion on  the  complainant  to  prove  the  fact  by 
more  than  one  witness.  (5  Peters,  111 ;  4 
Wash.  C.  C.  R.  601.)"  See  4  How.  S.  C. 
R.  217-219.  [*  In  California  the  answer 
is  only  a  pleading,  and  is  not  evidence  for 
defendant.     Bostic  v.  Love,  16  Cal.  69.] 

1  Pember  v.  Mathers,  1  Bro.  Ch.  R.  52. 

2  Pierson  v.  Catlin,  3  Verm.  272  ;■  Maury 
V.  Lewis,  10  Ycrg.  115.  And  see  Free- 
man V.  Fairlic,  3  Mer.  42.  For  cases  il- 
lustrative of  the  nature  and  amount  of  the 
corroborative  testimony  required,  in  ad- 
dition to  one  witness,  to  outweigh  the  an- ' 
swer,  see  Only  v.  Walker,  3  Atk.  407  ; 
Morphett  v.  Jones,  I  Swanst.  172;  Bid- 
dulph  V.  St.  John,  2  Sch.  &  Lefr.  532 ; 
Lundsday  v.  Lynch,  Id.  1  ;  Piling  v.  Ar- 
mitage,  12  Ves.  78. 

3  Long  V.  White,  5  J.  J.  Marsh.  228  ; 
Gould  V.  Williamson,  8  Shepl.  273  ;  Clark 
T.  Riemsdyk,  9  Cranch,  153.  In  this  case, 
the  doctrine  on  this  subject  was  expound- 
ed by  Marshall,  C.  J.,  in  the  following 
terms  :  "  The  general  rule,  that  either  two 
witnesses,  or  one  ■witness,  with  probable 
circumstances,  will  be  required  to  outweigh 
an  answer  asserting  a  fact  responsively 
to  a  bill,  is  admitted.  The  reason  upon 
which  the  rule  stands  is  this  :  The  plain- 


tiff calls  upon  the  defendant  to  answer  an 
allegation  he  makes,  and  thereby  admits 
the  answer  to  be  evidence.  If  it  is  testi- 
mony, it  is  equal  to  the  testimony  of  any 
other  witness  ;  and  as  the  plaintiff  cannot 
prevail  if  the  balance  of  proof  be  not  in  his 
favor,  he  must  have  circumstances  in  ad- 
dition to  his  single  witness,  in  order  to 
turn  the  balance.  But  ceitainly  thei-e  may 
be  evidence  arising  from  circumstances 
stronger  than  the  testimony  of  any  single 
witness.  The  weight  of  an  answer  must 
also,  from  the  nature  of  evidence,  depend, 
in  some  degree,  on  the  fact  stated.  If  a 
defendant  asserts  a  fact  which  is  not  and 
cannot  be  within  his  own  knowledge,  the 
nature  of  his  testimony  cannot  be  changed 
by  the  positiveness  of  his  assertion.  The 
strength  of  his  belief  may  have  betrayed 
him  into  a  mode  of  expression  of  which  he 
was  not  fully  apprised.  When  he  intend- 
ed to  utter  only  a  strong  conviction  of  the 
existence  of  a  particular  fact,  or  what  he 
deemed  an  infallible  deduction  from  facts 
which  were  known  to  him,  he  may  assert 
that  belief  or  that  deduction  in  terms  which 
convey  the  idea  of  his  knowing  the  fact  it- 
self. Thus,  when  the  executors  say  that 
John  Innes  Clark  never  gave  Benjamin 
Monro  authority  to  take  up  money  or  to 
draw  bills  ;  when  they  assert  that  Riems- 
dyk, -who  was  at  Batavia,  did  not  take  this 
bill  on  the  credit  of  the  owners  of  The  Pat- 
terson, but  on  the  sole  credit  of  Benjamin 
Monro,  they  assert  facts  which  cannot  be 
within  their  own  knowledge.  In  the  first 
instance  they  speak  from  belief;  in  tha 
last  they  swear  to  a  deduction  which  they 
make  from  the  admitted  fact  that  Monro 
could  show  no  vsritten  authority.  These 
traits  in  the  character  of  testimony  must 


254  LAW   OF   EVIDENCE  IN   EQUITY.  [PART  VI. 

been  held,  that  if  the  answer  be  positive,  denying  the  charge  in  the 
bill,  it  ought  not  to  be  overthrown  by  evidence  less  positive,  though 
it  proceed  from  the  mouth  of  two  witnesses  ;  ^  and  that  if  the 
answer  be  improbable,  yet,  if  it  is  not  clearly  false,  it  will  be  con- 
clusive in  favor  of  the  defendant,  in  the  absence  of  any  opposing 
proof,*'^  On  tlie  other  hand,  it  has  been  held,  that  the  force  of  the 
answer  to  a  bill  of  discovery  may  be  impeached  by  evidence  showing 
directly  that  the  defendant  is  not  to  be  believed.^  So,  if  the  fact  is 
denied  upon  belief  only  ;  unless  the  grounds  of  belief  are  also  dis- 
closed, and  are  deemed  sufficient ;  *  or,  if  the  fact  is  denied  equiv- 
ocally, indistinctly,  or  evasively,  in  the  answer  ;  ^  or,  if  the  denial 
is  mixed  up  with  a  recital  of  circumstances  inconsistent  with  the 
truth  of  the  denial  ;  ^  or,  if  the  answer  is  made  by  a  corporation, 
under  its  seal,  and  without  oath ; "'  the  testimony  of  one  witness 
may  be  sufficient  against  it.  But  a  positive  answer,  responsive  to 
the  bill,  is  not  outweighed  by  the  proof  of  facts  which  may  be  rec- 
onciled with  the  truths  of  the  statements  or  denials  in  the  answer  ;  ^ 
nor  by  the  proof  of  the  mere  admissions  of  the  defendant,  contra- 
dictory to  the  answer,  unless  they  appear  to  have  been  deliberately 
and  considerately  made.^  Very  little  reliance,  it  is  said,  ought  to 
be  placed  upon  loose  conversations  or  admissions  of  the  party,  to 
overbalance  his  solemn  denial,  on  oath,  in  his. answer.^'' 

be  perceived  by  the  Court,  and  must  be  al-  the  Common  Law,  in  all  cases  to  which 

lowed  their  due  weight,  whether  the  evi-  these  principles  and  rules  can  apply  ;  agree- 

dence  be  given  in  the  form  of  an  answer  ably  to  the  maxim  —  a^H/tas  secjuitur  legem. 

or  a  deposition.     The  respondents  couhl  ^  Auditor  v.  Johnson,   1  Hen.  &  Munf. 

found  their  assertions  only  on  belief;  they  536. 

ought   so   to  have  expressed  themselves;  ^  Jackson  v.  Hart,  11  Wend.  343. 

and    their   having,    pcrha])S    incautiously,  "  Miller  v.  Talleson,  1   Harp.   Ch.   145. 

used  terms  indicating  a  knowledge  of  wha't,  And  see  Dunham  v.  Yates,  1  Hoffm.  Ch. 

in   the   nature  of  tilings,   they  could   not  K.  185. 

know,  cannot  give  to  their  answer  more  *  Hughes  ;■.  Garner,   2  Y.  &  C.   328 ; 
effect  than  it  would  have  been  entitled  to,  Copeland  v.  Crane,  9  Pick.  73,  78 ;  Hunt 
had   they  been  more  circumspect  in  their  v.  liousmanier,  3  Mason,  294. 
language."    9  ('ranch,  KJO,  161.      See  also  ^  Phillips  v.  Kichardson,  4  J.  J.  Marsh. 
Watts  V.  Hvdc,  12  Jur.  661.  212.     And  see  Brown  v.  Brown,  10  Yerg. 
The  rule'refpiiring  the  testimony  of  two  84  ;  Farnam  v.  Brooks,  9  Pick.  212  ;  Mar- 
witnesses,  or  its  full  e(|uivalcnt,  was  bor-  tin  v.  Green,  10  Miss.  652. 
rowed  from  the  rule  of  the  Roman  Civil  «  Barratpie  v.  Siter,  4  Eng.  545. 
I_,jivv,  —  /l-ii,oiisionnlnsmmoiii)iini)ait(Ji<itur.  ">  Van  Wyck  r.  Norvcll,  2  Humph.  192; 
But  the  strictness  with  which  tiie  rules  of  Lovett  v.  Steam  Saw-.Mill  Co.,  6  Paige,  54  ; 
that  hiw  wtTc  formerly  observed  in  Courts  sed  qimir,  and  sec  4  How.  S.  0.  R.  218, 
of  Equitv  has  very  much  abated  in  modern  219,  semh.  contra. 

times,   and    the   rule    iu  ([uestion    is   now  >*  Branch  Bank  i'.  Marshall,  4  Ala.  60. 

placed   on   the  principle  above  stated  bv  »  Hope  r.  Evans,  1  Sm.  &  M.  195  ;  Petty 

Marshall,    C   J.     It    hence   appears    tluit  v.  Taylor,  5  Dana,  598.     It  has  been  held, 

these  Courts  no  longer  recognize  the  bind-  that  the  testimony  of  two  witnesses  to  two 

ing  force  of  the  Civil   Law,  even  in   ])ro-  distinct    conversations,    is    not    sufficient, 

ceedings  which,  in  general,  are  aeeonling  Love  i'.  Braxton,  5  Call.  537. 

to    the"  course   of   that    law;   i)ut   govern  w  Flagg  i'.  Mann,  2  Sumn.  486,  553,  554, 

themselves  by  the  princij)les  and  rules  of  per  Story,  J. ;  Hine  v.  Dodd,  2  Atk.  275. 


PART  VI.]      SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  255 


§  290.  The  effect  thus  given  to  the  answer  is  limited  to  those 
parts  of  it  which  are  strictly  responsive  to  the  hill ;  it  being  only 
where  the  plaintiff  has  directly  appealed  to  the  conscience  of  the 
defendant,  and  demanded  of  him  the  disclosure  of  a  particular 
matter  of  fact,  that  he  is  bound  to  receive  the  reply  for  truth,  until 
he  can  disprove  it.  If,  therefore,  the  defendant,  in  addition  to  his 
answer  to  the  matter  concerning  which  he  is  interrogated  by  the 
plaintiff,  sets  up  other  facts  by  way  of  defence,  his  answer  is  not 
evidence  for  him,  in  proof  of  such  new  matter,  but  it  must  be  proved 
aliunde,  as  an  independent  allegation .^  We  have  already  seen ,2 
that  the  rule  of  the  Common  Law  on  this  subject  is  different  from 
the  rule  in  Equity  ;  it  being  required  in  Courts  of  Law,  when  the 

1  2  Dan.  Ch.  Pr.  983,  984,  and  notes  by 
Perkins  [*3d  Amer.  Ed.  840,  841 J  ;  2 
Story,  Eq.  Jur.  §1529  ;  2  Story,  Eq.  PI. 
§  849  a  ;  Hart  v.  Ten  Eyck,  2  Johns.  Ch. 
62.  In  this  case,  the  rule  was  thus  stated 
and  explained  by  the  learned  Chancellor 
Kent:  "  It  appears  to  me,  that  there  is  a 
clear  distinction,  as  to  proof,  between  the 
answer  of  the  defendant  and  his  examina- 
tion as  a  iviiness.  At  any  rate,  the  question  ■ 
how  far  the  matter  set  up  in  the  answer 
can  avail  the  defendant,  without  proof,  is 
decidedly  and  rationally  settled.  The  rule 
is  fully  explained  in  a  case  before  Lord  Ch. 
Cowper,  in  1707,  reported  in  Gilbert's  Law 
of  Evidence,  p.  45.  It  was  the  case  of  a 
bill  by  creditors  against  an  executor,  for 
an  account  of  the  personal  estate.  The 
executor  stated  in  liis  answer  that  the  tes- 
tator left  £1,100  in  his  hands,  and  that, 
afterwards,  on  a  settlement  with  the  testa- 
tor, he  gave  his  bond  for  £  1 ,000,  and  the 
other  £100  was  given  him  by  the  testator 
as  a  gift  for  his  care  and  trouble.  There 
was  no  other  evidence  in  the  case  of  the 
£  1,100  having  been  deposited  with  the 
executor.  The  answer  was  put  in  issue, 
and  it  was  urged  that  the  defendant  having 
charged  himself,  and  no  testimony  appear- 
ing, he  ought  to  find  credit  where  he  swore 
in  his  own  discharge.  But  it  was  resolved 
by  the  Court,  that  when  an  answer  was 
put  in  issue,  iv/iat  was  confessed  and  admitted 
by  it,  need  not  be  provtd ;  but  that  the  de- 
fendant must  make  out,  by  proof,  what  was 
insisted  on  by  way  of  avoidance.  There 
was,  however,  this  distinction  to  be  ob- 
served, that  where  the  defendant  admitted 
a  fact,  and  insisted  on  a  distinct  fact  by  way 
of  avoidance,  he  must  prove  it,  for  he  may 
have  admitted  the  fact  under  an  apprehen- 
sion, that  it  could  be  proved,  and  the  ad- 
mission ought  not  to  profit  him,  so  far  as 
to  pass  for  truth,  whatever  he  says  in  avoid- 
ance.   But  if  the  admission  and  avoidance 


had  consisted  of  one  single  fact,  as  if  he  had 
said  the  testator  Iiad  given  him  £100,  the 
whole  must  be  allowed,  unless  disproved. 
This  case  is  cited  by  Peake  ( F>.  3C,  in  nolis), 
to  show  a  distinction,  on  this  sui)ject,  be- 
tween the  rule  at  Law  and  Equity,  and 
that  in  Chancery  one  part  of  an  answer 
may  be  read  against  the  party  without 
reading  the  other  ;  and  that  the  plaintiff 
may  select  a  particular  admission,  and  put 
the  defendant  to  prove  other  facts.  He 
preferred,  as  he  said,  the  rule  at  law,  that 
if  part  of  an  answer  is  read,  it  makes  the 
whole  answer  evidence,  and  even  Lord 
Hardwicke,  in  one  of  the  cases  I  have 
cited,  thought  the  rule  of  law  was  to  be 
preferred,  provided  the  Courts  of  Law 
would  not  require  equal  credit  to  be  given 
to  every  part  of  the  answer.  On  the  above 
doctrine,  in  the  case  of  Gilbert,  1  have  to 
remark,  in  the  first  place,  that  it  is  un- 
doubtedly the  long  and  well-settled  rule  in 
Chancery,  whatever  may  be  thought  of  its 
propriety.  Lord  H.  says,  in  the  case  of 
Talbot  V.  Rutledge,  that  if  a  man  admits, 
by  his  answer,  that  he  received  several 
sums  of  money  at  particular  times,  and 
states  that  he  paid  away  those  sums  at 
other  times  in  discharge,  he  must  prove 
his  discharge,  otherwise  it  would  be  to 
allow  a  man  to  swear  for  himself,  and  to 
be  his  own  witness.  But,  in  the  next 
place,  I  am  satisfied  that  the  rule  is  per- 
fectly just,  and  that  a  contrary  doctrine 
would  be  pernicious,  and  render  it  abso- 
lutely dangerous  to  employ  the  jurisdiction 
of  this  Court,  inasmuch  as  it  would  enable 
the  defendant  to  defeat  the  plaintiff's  just 
demands,  by  the  testimony  of  his  own  oath, 
setting  up  a  discharge  or  matter  in  avoid- 
ance." 2  Johns.  Ch.  88-90.  See  also 
Wasson  v.  Gould,  3  Blackf.  18.  [*Parkes 
V  Gorton,  3  Rhode  Is.  R.  27.] 

^  Ante,  Vol.  1,  §  201  ;  Supra,  §  281. 


256  LAW    OF   EVIDENCE  IN  EQUITY,      •  [PART  VI. 

declaration  or  conversation  of  a  party  is  to  be  proved  against  him, 
the  whole  of  what  was  said  at  the  same  time  and  in  relation  to  the 
same  subject,  should  be  taken  together.  But  this  difference  in  the 
rules  arises  from  the  difference  in  principle  between  the  two  cases. 
For  in  Courts  of  Law,  the  evidence  is  introduced  collaterally,  as 
evidence,  and  not  as  a  pleading  ;  and  therefore  it  is  reasonable 
that  the  whole  should  be  weighed  together  ;  and  the  rule  in  Chan- 
cery is  the  same,  when  an  answer  or  other  declaration  of  the  party 
is  introduced  collaterally,  and  merely  by  way  of  evidence.  So, 
when  the  bill  is  for  discovery  only,  and  the  answer  is  read  for  that 
purpose,  the  rule  still  is  to  read  the  whole.  But  when,  upon  the 
hearing  of  a  bill  for  relief,  passages  are  read  from  the  answer, 
which  is  put  in  issue  by  a  replication,  they  are  read  not  as  evidence 
in  the  technical  sense,  but  merely  as  a  pleading  to  show  what  the 
defendant  has  admitted,  and  which  therefore  needs  not  to  be 
proved  ;  and  hence  the  plaintiff  is  not  required  to  read  more  than 
the  admissions.^ 

§  291.  The  distinction  between  a  bill  for  discovery  and  a  bill 
for  relief,  in  the  application  of  the  rule  above  stated,  is  more  strik- 
ingly apparent  when  a  bill  for  discovery,  after  a  discovery  is  ob- 
tained, is  hy  amendment  converted  into  a  hill  for  relief.  The  defend- 
ant, in  such  case,  being  permitted  to  put  in  a  new  answer,  the 
former  is  considered  as  belonging  to  a  former  suit,  and  therefore  is 
permitted  to  be  read  as  an  answer  to  a  bill  of  discovery,  as  evi- 
dence ;  and  not  as  part  of  the  defence  or  admission,  upon  which 
the  bill  procccds.2 

§  291  a.  In  the  case  of  a  supplemental  hill,  which  is  merely  a 
continuation  of  the  original  suit,  all  the  testimony  which  was 
properly  taken  in  the  original  suit,  may  be  used  in  both  suits, 
notwithstanding  it  was  not  entitled  in  the  supplemental  suit.  If 
publication  has  passed  in  the  original  cause,  no  new  evidence  is 
admissible,  in  the  supplemental  cause,  of  matters  previously  in 
issue. ^    But,  where  a  bill  was  brought  by  the  son  and  heir  of  a 

'  2  Johns.  Ch.  90-94  ;  2  Poth.  Obi.  by  in  the  answer,  the  record  of  it  \s  not  rcqui- 

Eviins,  l.'J7,  1.38  (Amcr.  cd.)  ;  Ormond  v.  site  to  be  filed  a.s  an  exhibit,  but  will  be 

Hutchinson,   1.3  Ves.  51,  fov/.  approved  by  deemed  sufficiently  proved  by  the  admission 

Ld.   Ch.  Krskine,   Id.    53  ;  Thompson  v.  in  the  answer.     Lyman  i-.  Little,  15  Verm. 

Lambe,  7  Yes.  587  ;  Boardman  v.  .Jackson,  576. 

2  I?all.  &  Beat.  382;  Beckwith  r.  Butler,         ^  Butterworthi;.  Bailey,  15  Ves.  358, 363. 

1  Wash.  224  ;  Bush  v.  Livinjjston,  2  Caines,  And  see  Lousada  v.  Templer,  2  Russ.  561  ; 

Ca.s.  66  ;  (Jreen  v.  Hart,  1  .Johns.  580,  590.  1  Story,  Eq.  Jur.  §  64  k,  10-13. 
If  a  jud;;mcnt  or  decree  in  another  cause         *  .3  "l)an.  Ch.  Pr.  1683,  1684  [*3d  Amer. 

is  properly  stated  in  the  bill  and  admitted  Ed.,  1611J. 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS    Of"  EVIDENCE.  257 

grantor,  for  the  purpose  of  setting  aside  liis  conveyance  to  the  de- 
fendant, on  the  ground  of  fraud,  and  a  supplemental  bill  being 
filed,  to  bring  in  the  administratrix  of  the  grantor  as  a  necessary 
party  defendant,  the  cause  was  set  down  by  the  plaintiff  for  hear- 
ing, without  replication  to  the  answer  to  the  supplemental  bill ; 
and  the  administratrix  produced  the  letters  of  administration,  in 
proof  of  her  representative  character  ;  it  was  objected  by  the  orig- 
inal defendant,  that  this  evidence  was  inadmissible,  and  that,  as 
his  answer  in  the  supplemental  suit  averred  his  original  answer  to 
be  true,  the  cause  could  now  be  adjudicated  only  upon  the  facts 
stated  in  that  answer.  But  it  was  held  by  the  Yice-Chancellor, 
that  the  Court  was  entitled  to  look  into  the  letters  of  administra- 
tion, for  the  purpose  of  ascertaining  the  representative  character 
of  the  administratrix,  and  that,  notwithstanding  the  present  pos- 
ture of  the  suit,  the  evidence  taken  in  the  original  cause  was  still 
before  the  Court.^  The  point,  whether  documentary  evidence  is 
admissible,  when  the  answer  is  not  replied  to,  was  raised  and  ar- 
gued, but  was  not  decided.  The  cases  on  this  point  are  conflict- 
ing ;  but  tlie  weight  of  authority  seems  to  be  in  favor  of  admitting 
the  proof  of  documents,  the  existence  or  genuineness  of  which  is 
not  denied.^ 

§  292.  We  are  next  to  consider  admissions  made  hy  express 
AGREEMENT  OF  THE  PARTij:s,  in  Order  to  dispense  with  other  proof. 
These  ordinarily  ought  to  be  in  writing,  and  signed  by  each  party 
or  his  solicitor  ;  the  signature  of  the  latter  being  deemed  suffi- 
cient, as  the  Court  will  presume  that  he  was  duly  authorized  for 
that  purpose.^  But  it  is  not  indispensably  necessary  that  the 
agreement  be  written  ;  in  some  cases,  as,  for  example,  the  waiver 
of  proof  by  subscribing  witnesses,  a  parol  agreement,  either  of  the 
party,  or  of  the  attorney,  has  been  held  sufficient.*  It  must,  how- 
ever, be  a  distinct  agreement  to  admit  the  instrument  at  the  trial, 
dispensing  with  the  ordinary  proof  of  its  execution  ;  for  what  the 
attorney  said  in  the  course  of  conversation  is  not  evidence  in  the 

1  Wilkinson  v.  Fowkes,  9  Hare,  193,  592 ;  Gresley  on  Eq.  Ev.  48  ;  Young  v.  Wright, 

15  Eng.  Law  &  Eq.  R.  163.  1  Campb.  139.     In  some  Courts,  the  rules 

'■^  2  Dan.  Ch.  Pr.  975,  1025  [3d  Amer.  require  that  these   agreements   should  al- 

Ed.  833,  876,  877].      Rowland  ;;.  Sturgis,  ways  be  in  writing,  or  be  reduced  to  the 

2  Hare,  520  ;  Chalk  v.  Raine,  7  Hare,  393  ;  form  of  an  order  by  consent.     See  Suydam 

Jones  V.  Griffith,  14  Sim.  262 ;  Ne^alle  v.  v.  Dequindre,  Walk.  Ch.  23  (Michigan)  ; 

Fitzgerald,  2  Dr.  &  War.  530.     See  infra,  Brooks  v.  Mead,  Id.  389. 

§  309.  *  Laing  v.  Raine,  2  B.  &  P.  85 ;  Mar- 

»  Gainsford  v.  Grammar,  2  Campb.  9  ;  2  shall  v.  Cliff,  4  Campb.  133. 
Dan.  Ch.  Pr.  988  [*  3d  Amer.  Ed.  845]  ; 

VOL.  III.  17 


258  *   LAW   OF   EVIDENCE  IN  EQUITY.  [PART  VI. 

cause.i  The  authority  of  the  attorney  to  act  as  such  will  be  suffi- 
ciently proved  if  his  name  appears  of  record.^ 

§  293.  Admissions  of  this  sort,  however,  are  not  to  he  extended 
hy  implication,  beyond  what  is  expressed  in  the  agreement.  Thus, 
in  an  action  of  covenant,  where  the  defendant's  attorney  signed  an 
admission  in  these  words,  "  I  admit  the  due  execution  of  the  arti- 
cles of  agreement  dated  the  23d  day  of  February,  1782,  mentioned 
in  the  declaration  in  this  cause,"  it  was  held  that  this  only  dis- 
pensed with  the  attendance  of  the  subscribing  witness,  and  did  not 
preclude  the  defendant  from  showing  a  variance  between  the  in- 
strument produced  in  evidence  and  that  described  in  the  declara- 
tion ;  though,  had  the  language  been  "  as  mentioned  in  the  dec- 
laration," its  effect  might  have  been  different.^  So,  where  it  was 
admitted  that  a  certain  exhibit  was  a  notice,  and  that  a  certain 
other  exhibit  was  a  true  copy  of  the  lease  referred  to  in  the 
notice  ;  it  was  held,  that  the  admission  of  the  notice  was  not  evi- 
dence of  the  lease,  and  that  the  admission  as  to  the  copy  of  the 
lease  only  substituted  the  copy  for  the  original,  but  did  not  place 
the  copy  in  a  better  situation  than  the  original  would  have  been 
if  it  were  produced  but  not  proved.^ 

§  294.  Lastly,  it  is  to  be  observed,  that  while  the  Courts  will 
generally  encourage  the  practice  of  admissions  tending  to  the  sav- 
ing of  time  and  expense,  and  to  promote  the  ends  of  justice,  they 
will  not  sanction  any  agreement  for  an  admission,  hy  zvhich  any  of 
the  known  principles  of  latv  are  evaded.  Thus  where  a  husband 
was  willing  that  his  wife  should  be  examined  as  a  witness,  in  an 
action  against  him  for  malicious  prosecution.  Lord  Hardwicke  re- 
fused to  permit  it,  because  it  was  against  the  policy  of  the  law.^ 
Admissions  by  infants,*^  and  admissions  evasive  of  the  stamp-laws,^ 
have  been  disallowed,  on  the  same  general  principle. 

3.     DOCUMENTS. 

§  295.   In  respect  to  documents,  the  first  point  to  be  considered 

1  LiiinfT  '••  Kainc,  2  B.  &  P.  85 ;  Mar-  K.  357.  Such  seems  to  be  the  sound  rule 
Bhall  V.  Cliff,  4  Cami)h.  133;  Young  v.  of  hiw,  though  it  has  in  one  or  two  instanrcs 
Wri{:ht,  sH/?ra;  Ante,  Vol.  1,  §  186.  been  broken   in  upon.     See  ante,  Vol.   1, 

2  Ibid.  §  340. 

8  Goldic  V.  Shnttlcworth,  1  Campb.  70.  «  See  supra,  §§.279.  280  ;  Wilkinson  v. 

*  Mounscv  f.  Burnham,  1  Hare,  15.  And  Beal,  4  Mad.  40S  ;  Town.scnd  r.  Ives,  1 

Bee  Fitzfrerald  v.  Flahertv,  1  Moll.  350.  Wils.  21G  ;  Iloldcn  v.  Ilearn,  I  Beav.  445; 

&  2   l)an.   f'h.  Pr.  itSS    [3d  Amer.  Kd.  Morrison  r.  Arnold,  19  Ves.  671. 

846]  ;   Barker  v.  Dixie,  Kep  temp.  Ilardw.  ■?  Owen  I'.Thomas,  3  My.  &  K.  353-357  ; 

264.     And  see  Owen  f.  Thomas,  3  My.  &  2  Dan.  Ch.  Pr.  989. 


PART  Vl]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  259 

is  their  production  ;  which,  on  motion,  is  ordered  by  the  Court, 
either  for  their  safe  custody  and  preservation,  2:>f;nc?en^e  lite,  or  for 
discovery  and  use  for  the  p\irposes  of  the  suit.^  [*B\it  the  plaintiff, 
in  addition  to  a  discovery  of  that  which  constitutes  his  own  title, 
may  seek  a  discovery  for  the  purpose  of  repelling  what  he  antici- 
pates will  be  the  case  set  up  by  the  defendant.  But  this  does  not 
extend  to  a  discovery  of  the  evidence  in  support  of  the  defendants,^ 
and  a  party  obtaining  an  order  for  the  production  of  documents, 
is  entitled  to  have  tliem  inspected  by  his  solicitors  and  agents,  as 
well  as  by  himself.  But  neither  he  nor  they  are  entitled  to  make 
public  the  information  they  obtain  by  means  of  such  inspection  ; 
if  necessary,  an  injunction  will  be  granted  to  prevent  it.^]  Where 
the  production  is  sought  by  the  bill,  and  the  discovery  is  not  re- 
sisted, the  documents  are  described  either  in  the  answer  or  in 
schedules  annexed  to  it,  to  which  reference  is  made.  If  the  docu- 
ments are  not  sufficiently  described  in  the  answer,  or  the  posses- 
sion of  them  by  the  defendant  is  not  admitted  with  sufficient 
directness,  the  answer  will  be  open  to  exceptions ;  *  for  the  posses- 
sion must  be  shown  by  the  defendant's  admission  in  the  answer, 
and  cannot  be  established  by  affidavit,  unless,  perhaps,  where  the 
plaintiff's  right  to  the  production  is  in  question,  and  the  docu- 
ments are  neither  admitted  nor  denied  in  the  answer  ;  in  which 
case  the  plaintiff  has  been  admitted  to  verify  them  by  affidavit.^ 

§  296.  If  the  documents  are  not  in  the  defendant's  actual  cus- 
tody, but  are  in  his  poiver^  as,  if  they  are  in  the  hands  of  his  soli- 
citor ;  ^  or  of  his  agent,  whether  at  home  or  in  a  foreign  country  ;  ^ 
or  if  they  are  about  to  come  to  his  possession  by  arrival  from 
abroad  ;  ^  the  Court  will  order  him  to  produce  them,  if  no  cause 
appear  to  the  contrary  ;  and  will  allow  a  reasonable  time  for  that 
purpose,  according  to  the  circumstances.^^   If  they  are  in  the  joint 

1  See,  on  this  subject,  3  Dan.  Ch.  Pr.  See  also  Story  v.  Lenox,  1  My.  &  C.  534 ; 

ch.  41  ;  Wigram  on  Discovery,  pi.  284  et  [Reynell  v.  Sprve,  8  Eng.  Law  &  Eq.  Rep. 

seq.  ;  Story,  Eq.  PI.  §§  858  -  860  a.  35.] 

-  [*  Attorney-General  v.  Corporation  of  «  Taylor  v.  Eundell,  1  Cr.  &  Phil.  104  ; 

London,  2  Mac.  &  Gord.  247.  3  Dan,    Ch.  Pr.  2041,   2042  [*  3d  Amer. 

a  Williams  v.  Prince  of  Wales,  Life,  &c.  Ed.  1376]. 

Co.,  23  Beav.  .338.]  '•  Ibid. 

*  Ibid  ;  Atkyns  v.  Wryght,  14  Ves.  211,  "  Ibid. ;  Eagar  v.  Wisvvall,  2  Paige,  369, 

213  ;  3   Dan.    Ch.  Pr.  2045  ;   [Robbins  v.  371  ;  Freeman  v.  Fairlie,  3  Mer.  44  ;  Mur- 

Davis,  1  Blatchf.  C.  C.  238.]  rav  v.  Walter,  1  Cr.  &  Phil.  125  ;  Morrice 

6  Barnett  v.  Noble,    1  Jac.  &  W.  227  ;  y.  Swaby,  2  Beav.  500  ;  [Robbins  v.  Davis, 

Addis  V.  Campbell,  1  Beav.  26  i  ;  Lopez  v.  1  Blatchf.  C.  C.  238.] 

Deacon,  6  Beav.  254.     And  see  Watson  v.  ^  Farquharson  v.  Balfour,  Turn.  &  Russ. 

Ren  wick,  4  Johns.  Ch.  381,  where  the  his-  190,  206. 

tory  and  reasons  of  the  rule  are  stated.  i*^  Ibid. ;  Eagary.  Wiswall,  2Paige,  371 ; 


2C0  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

possession  of  the  defendant  and  others,  not  parties  to  the  suit,  but 
equally  entitled,  with  him,  to  their  custody,  this  will  excuse  the 
defendant  from  producing  them,  but  he  will  still  be  required  to 
inspect  them  and  answer  as  to  their  contents ;  ^  and  if  they  are  in 
the  hands  of  a  common  agent  of  the  defendant  and  others,  the 
plaintiff  may  have  an  order  on  such  agent  to  permit  him  to  inspect 
them  ;  on  the  ground  that  the  Court  has  a  right  to  give  the  plain- 
tiff all  the  access  to  the  documents  which  the  defendant  would  be 
entitled  to  claim.^  Where  the  documents  are  in  the  hands  of  the 
defendant's  agent  or  solicitor  who  wrongfully  retains  them,  so  that 
they  cannot  be  controlled,  he  may  be  compelled,  by  being  made  a 
party  to  the  cause. ^ 

§  297.  To  entitle  the  plaintiff  to  a  production  of  documents,  a 
merely  general  reference  to  them  in  the  answer  is  not  sufficient ; 
they  must  be  described  with  reasonable  certainty,  either  in  the 
answer  or  in  the  schedule  annexed  to  it,  so  as  to  be  considered,  by 
the  reference,  as  incorporated  in  the  answer,  and  to  enable  the 
Court  to  make  an  order  for  their  production,  and  afterwards  to 
determine  whether  its  order  has  been  precisely  and  duly  obeyed.* 

§  298.  It  is  further  necessary  that  the  plaintiff,  in  order  to  bo 
entitled  to  the  production  of  documents,  should  either  have  a 
right  to  the  documents  themselves,  or  a  sufficient  interest  in  inspecting 
them.  And  this  right  must  appear  in  his  bill,  and  cannot,  regu- 
larly, be  established  by  collateral  proof.  Thus,  where,  after  an 
answer,  admitting  the  possession  of  certain  documents  relating  to 
the  matters  of  some  of  them  in  the  bill,  the  plaintiff  amended  the 

Taylor  v.  Rundell,  I  Phil.  C.  C.  225  ;  11  decree  for  an  account  was  made,  had  before 
Sim.  391.  decree  made  full  discovery  by  answer  as  to 
1  3  Dan.  Ch.  Pr.  2042,  2043  [*  3d  Amcr.  documents  in  his  possession,  it  was  held, 
Ed.  1377] ;  Taylor  i'.  Rundell,  1  Cr.  &Phil.  nevertheless,  that  the  plaintiff  after  decree 
1110;  Murray  (,-.  Walter,  Id.  114;  [*  Ed-  was  entitled  to  call  for  an  affidavit  as  to 
monds  V.  Foley  (Lord),  30  Bcav.  282,  S.  C.  his  pos.session  of  any  other  documents  tlian 
8  Jur.  N.  S.  552. 1  those  mentioned  in  his  answer  rclatinj;  to 
-  Walljuni  )'.  Ii)<rilt)v,  1  My.  &  K.  61.  the  matters  in  (|ucstion.  Ilansjip  v.  Kit- 
8  Ibid.  ;  Fcnwiok  y.  "Head,  1  Mer.  125.  ton,  1  DeG.  J.  &  Sm.  440.]  [The  power 
■*  Atkyns  v.  Wryj^ht,  14  Ves.  211  ;  of  the  Court  to  compel  cither  of  the 
Watson  V.  Kenwick,  4  Johns.  Ch.  381.  parties  to  a  suit  to  produce  books  and 
[*  Wiicre  a  case  is  made  out,  raising  a  j)apers  in  their  possession  rclatinfj  to 
reasonable  suspicion  that  a  defendant  who  matters  in  issue  between  them,  is  to  bo 
has  made  an  affidavit  as  to  documents,  has  exercised  with  caution,  and  the  party 
in  liis  ]i()sscssi()n  other  documents  relatinp^  caliiuf^'  for  its  exercise  must,  with  a  reason- 
to  the  matters  in  question  and  not  disclosed  able  deforce  of  certainty,  desij^nate  the 
by  the  tirst  atlidavit,  tli(!  Court  may  order  books  and  papers  required,  and  the  facts 
him  to  make  a  furihcr  affidavit,  aitliouKh  expected  to  be  proved  by  them.  Williams 
the  first  is  sufficient  in  point  of  form.  v.  Williams,  1  Md.  (^h.  Dccis.  199;  Rob- 
Noel  V.  Noel,  1  1).;(J.  J.  &  Sm.  408.  l)ins  )^.  Davis,  1  Hlatclif  C.  C.  238  ;  Jack- 
Aud  where  a  defcndaut  against  whom  a  ling  v.  Edmonds,  3  E.  D.  Smith,  539.] 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  261 

bill  by  striking  out  a  part  of  the  matters  to  which  the  documents 
related,  and  then  moved  for  a  production  of  them  upon  the 
answer  ;  it  was  refused,  because  his  right  to  it  was  no  longer  ap- 
parent upon  the  bill.^  If  the  defendant  admits  that  they  are  rele- 
vant to  the  plaintiff's  case,  this  will  throw  on  the  defendant  the 
burden  of  excusing  himself  from  prodvicing  them.^  But  the  plain- 
tiff's right  to  the  production  must  relate  to  the  purposes  of  the 
suit ;  and  to  the  relief  prayed  for  ;  if  the  object  be  collateral  to 
the  suit ;  as,  if  a  copy  of  a  certain  book  be  demanded,  for  the  pur- 
poses of  his  trade,  this  is  not  such  an  interest  as  will  entitle  him 
to  the  production.^  So,  if  the  production  of  a  document  be  sought 
only  for  the  ulterior  purposes  of  enabling  the  plaintiff  to  carry 
into  execution  the  decree  which  he  may  obtain  in  the  cause,  and 
not  for  the  purposes  of  proving  his  right  to  a  decree,  an  inspection 
will  not  be  granted  before  the  hearing.*     The  sufficiency  of  the 


1  Haverficld  v.  Pyman,  2  Phil.  C.  C. 
202.  [*  For  the  purpose  of  an  application 
for  the  production  of  documents,  it  must 
be  assumed  that  the  plaintiff's  case,  as 
alleged  in  the  bill,  is  true  in  order  to  test 
whether  he  is  entitled  to  production  of 
documents  upon  that  assumption  ;  because 
if  the  Court  must  wait  until  the  fate  of  the 
litigation  is  known,  that  would  be  equiva- 
lent to  refusing  production.  Gresley  v. 
Mousley,  2  Kav  &  J.  288.] 

^  Smith  V.  D.  of  Beaufort,  1  Hare,  519  ; 
Tyler  v.  Dravton,  2  Sim.  &  Stu.  310;  3 
Dan.  Ch.  Pr.  2040-2048  [*3d  Amer.  Ed. 
1379].  [*  The  Court  accepts  the  oath  of  a 
defendant  whether  documents  are  relevant ; 
but  the  plaintiff  has  a  right  to  judge  for 
himself  whether  they  will  assist  his  case, 
and  is  entitled  to  the  production  of  all 
relevant  documents,  except  such  as  the 
Court  can  clearly  see  to  have  no  bearing 
on  the  issue.  Mansell  v.  Feeney,  2  Johns. 
&  H.  320.] 

3  3  Dan.  Ch.  Pr.  2049  [*3d  Amer.  Ed. 
1380]  ;  Lingen  v.  Simpson,  6  Madd.  290. 

*  Ibid.  ;  Wigram  on  Discovery,  PI.  29.5. 
The  observations  of  this  learned  Vice- 
Chancelloron  this  point  deserve  particular 
attention,  and  are  as  follows  :  "  Supposing 
the  answer  to  contain  the  requisite  admis- 
sion of  possession  by  the  defendant,  and  a 
sufficient  description  of  the  documents,  the 
plaintiff  must  next  show  from  the  answer 
that  he  has  a  right  to  see  them.  This  is 
commonly  expressed  by  saying  that  the 
plaintiff  must  show  that  he  has  an  interest 
in  the  documents,  the  production  of  which 
he  seeks.  There  can  be  no  objection  to 
this  mode  of  expressing  the  rule,  provided 


the  sense  in  which  the  word  interest  is 
used  be  accurately  defined.  But  the  want 
of  such  definition  has  introduced  some 
confusion  in  the  cases  under  consideration. 
The  word  intfvest  must  here  be  understood 
with  reference  to  the  subject-matter  to 
which  it  is  applied.  Now,  the  purpose  for 
which  discovery  is  given  is  (simply  and 
exclusively)  to  aid  the  plaintiff  on  the  trial 
of  an  issue  between  himself  and  the  de- 
fendant. A  discover}'  beyond  or  uncalled 
for  by  this  particular  purpose,  is  not  with- 
in the  reason  of  the  rule  which  entitles  a 
plaintiff"  to  discovery.  The  word  interest, 
therefore,  must  in  these  cases  be  understood 
to  mean  an  interest  in  the  production  of  a 
document  for  the  purpose  of  the  trial  about 
to  take  place.  According  to  this  definition 
of  the  word  interest,  —  if  the  object  of  the 
suit  or  action  be  the  recovery  of  an  estate, 
—  the  plaintiff'  in  a  bill  in  aid  of  proceed- 
ings to  recover  that  estate,  will,  prima  facie, 
be  entitled,  before  the  hearing  of  the  cause, 
to  the  production  of  every  document,  the 
contents  of  which  will  be  evidence  at  that 
hearing  of  his  right  to  the  estate.  But  the 
same  reason  will  not  necessarily  extend  to 
entitle  the  plaintiff,  before  the  hearing  of 
the  cause,  to  a  production  of  the  title  deeds 
appertaining  to  the  estate  in  question.  He 
may,  indeed,  and  (if  his  bill  be  properly 
framed)  he  will  be  entitled  to  have  these 
title  deeds  described  in  the  answer,  and  also 
to  a  discovery  whether  they  are  in  the 
defendant's  possession  ;  because,  without 
proof  of  such  matters  (and  whatever  the 
plaintiff  must  prove  the  defendant  must 
prima  facie  answer),  a  perfect  decree  could 
not  be  made  in  the  plaintifl''s  favor.     The 


262 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  VI. 


plaintiff's  interest  in  the  documents,  of  which  a  discovery  and 
production  are  required,  depends  on  their  materiality  to  his  case  ; 
for  the  right  of  the  plaintiff  is  limited,  in  the  well-considered  lan- 
guage of  Vice-Chancellor  Wigram,  to  "  a  discovery  upon  oath  as 
to  all  matters  of  fact  which,  being  well  pleaded  in  the  bill,  are 
material  to  the  plaintiff's  case  about  to  come  on  for  trial,  and 
which  the  defendant  does  not  by  his  form  of  pleading  admit."  ^ 
But  an  exception  to  this  limitation  is  admitted,  where  the  defend- 
ant, in  stating  Ms  own  title,  states  a  document  shortly  or  partially, 
and  for  the  sake  of  greater  caution  refers  to  the  document,  in 
order  to  show  that  its  effect  has  been  accurately  stated ;  in  which 
case,  though  the  document  be  not  in  itself  material  to  the  plain- 
tiff's title,  the  Court  will  order  its  production  as  part  of  the 
answer?     [*  In  a  somewhat  recent  case,^  before  Vice-Chancellor 


same  observations  will  apply  to  a  case,  in 
whicli  the  object  of  the  suit  is  to  recover 
the  y)Ossession  of  documents.  The  plaintiff 
is  entitled  to  know  what  the  documents 
are,  and  ^clio  holds  iheni.  But  there  is  no 
reason  why  the  plaintiff  should,  in  cases 
of  the  description  here  noticed,  inspect  the 
documents  before  the  hearings  of  the  cause. 
Unless  the  meaning  of  the  word  '  interest ' 
be  limited  in  the  way  pointed  out,  it  is  ob- 
vious that  the  effect  of  a  simple  claim  (per- 
haps without  a  shadow  of  interest)  would 
be  to  open  every  muniment  room  in  the 
kingdom,  and  every  merchant's  accounts, 
and  every  man's  private  papers  to  the  in- 
spection of  the  mcrelv  curious." 

1  [*Ingilbyy.  Shafto,3.3Beav.31.]  Wi- 
gram on  Discovery,  pi.  26,  p.  15.  As  to 
the  nature  of  the  material ity ,  see  Id.  pi.  224 
et  seq. ;  [Robbins  v.  Davis,  1  Blatchf.  C. 
C.  2,38.] 

2  Hardman  v.  Ellames,  2  My.  &  K.  732  ; 
Adams  v.  Fisher,  3  My.  &  C.  .548  ;  Eager 
t'.  Wiswall,  2  Paige,  371.  The  .soundness 
of  the  exception  stated  in  the  text  has  been 
strongly  questioned  by  Vice-Chancellor 
Wigrain  (on  Discovery,  pi.  385 -424,  2d 
cd.).  to  which  the  student  is  referred  ;  the 
further  consideration  of  the  ])oint  being 
foreign  to  the  plan  of  this  work.  See  also 
Storv,  Eq.  Tl.  §  859;  3  Dan.  Ch.  Pr. 
205ti"-2060  [*3d  Amer.  Ed.  1385|  ;  Lat- 
imer V.  Neatc,  11  Bligh,  149;  Phillips  v. 
Evans,  2  Y.  &  C.  647.  It  may,  however, 
be  here  added,  that  the  English  rule,  that 
the  jilaintitf,  in  a  bill  of  discovery,  shall 
only  have  a  discovery  of  what  is  necessary 
to  his  own  title,  and  shall  not  pry  into  the 
title  of  the  defendant,  is  deemed  inconsist- 


ent with  the  course  of  remedial  justice  as 
administered  in  Massachusetts,  which  per- 
mits a  full  inquiry  as  to  all  and  any  facts 
that  may  impeach  the  right  of  property  in 
the  party  of  whom  the  inquiry  is  made. 
Adams  v.  Porter,  1  Cush.  170.  The  like 
principle,  it  is  conceived,  will  apply  in  the 
jurisprudence  of  Maine,  and  such  other 
States  as  pursue  similar  forms  of  remedy. 
[In  Swinborne  v.  Nelson,  15  Eng.  L.  & 
Eq.  578  (16  Beav.  416;  22  Law  J.  Rep. 
N.  S.  ch.  331 ),  the  Master  of  the  Rolls,  Sir 
John  Romilly,  said  :  "  I  am  disposed  to 
believe  that  the  decision  of  Adams  v.  Fish- 
er was  intended  by  the  Lord  Chancellor  to 
be  limited  to  withholding  only  the  produc- 
tion of  the  documents  which  could  not  as- 
sist the  plaintiff  in  making  out  his  title  to 
the  relief  sought ;  at  least  the  observations 
made  by  his  lordship,  respecting  the  ad- 
mission of  counsel  to  the  question  put  by 
the  Court,  seemed  to  point  to  this  result. 
However  this  may  be,  the  authorities  which 
relate  to  the  subject  were  not  commented 
on,  nor  brought  to  the  attention  of  the 
Court ;  and  after  the  most  careful  consid- 
eration which  I  am  able  to  give  to  this 
subject,  I  am  of  opinion,  that  if  the  case 
of  Adams  v.  Fisher  goes  beyond  the  point 
I  have  last  suggested,  it  is  not  in  accord- 
ance with  the  long  line  of  authorities  be- 
fore decided  in  this  (^ourt ;  and  therefore, 
if  I  have  to  choose  between  that  case  and 
other  cases  decided  by  equally  high  author- 
ity, I  feel  myself  compelled  "to  follow  those 
which  are  alone,  in  my  opinion,  consistent 
with  the  principle  on  wliich  pleadings  in 
equity  can  be  clearly  and  safely  estab- 
lished."   And  the  Court  stated,  in  another 


8  [*  Howard  v.  Robinson,  5  Jur.  N.  S.  136.] 


PART  VI.]      SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  263 

Kindersley,  this  question  is  carefully  examined,  and  the  principles 
discussed.  The  learned  judge  denied  that  the  mere  reference  to 
a  paper,  by  tlie  defendant  in  his  answer,  gave  the  plaintiff  any 
right  to  examine  it.  The  plaintiff,  it  was  admitted,  always  had 
the  right  to  the  inspection  of  any  paper  in  the  defendant's  posses- 
sion which  would  assist  his  case,  but  had  no  right  to  see  any  such 
document  tending  merely  to  establish  defendant's  case.  And  it 
would  seem,  upon  principle,  that  the  usual  reference  in  an  answer 
to  a  written  instrument,  for  greater  certainty,  did  not  oblige  the 
party  to  produce  it  merely  for  the  inspection  and  advantage  of  his 
opponent,  until  the  trial,  and  not  then,  unless  he  chose.  The 
case  of  Hardman  v.  Ellames^  is  here  examined,  and,  as  far  as 
this  question  is  concerned,  limited  or  explained.] 

§  299.  If  the  documents  and  papers,  of  which  production  is 
required,  are  admitted  to  be  in  the  defendant's  possession,  he  will 
be  required  to  produce  them,  though  they  are  7iot  referred  to  in 
the  answer,  and  though  they  relate  to  the  defendant's  title,  pro- 
vided they  also  relate  to  the  plaintiff's  title  ;  but  not  otherwise.^ 
If  they  are  referred  to,  but  are  not  admitted  to  be  in  his  possession, 
the  Court  cannot  order  their  production,  unless  it  appears  that 
they  are  in  the  hands  of  some  person  over  whom  the  defendant 
has  control.^  And  if  the  defendant  admits  that  he  has  the  docu- 
ment in  question,  and  offers  to  produce  it  if  the  Court  should 
require  him  so  to  do,  this  is  merely  a  submission  to  the  discretion 
of  the  Court.*  If  they  have  already  been  produced  before  a  com- 
missioner, in  order  that  the  plaintiff  may  prove  them  as  exhibits, 
the  defendant  is  bound  to  have  them  in  Court  at  the  hearing, 
though  there  has  been  no  direct  order  for  their  production.^ 

part  of  the  opinion,  "  It  is  impossible  to  his  deceased  client.  Feaver  v.  Williams, 
lay  down  one  rule  on  this  subject  of  pro-  11  Jur.  N.  S.  902.  The  mortgagee  of 
diiction  of  documents,  and  another  upon  a  testator  advanced  sums  of  money  to 
answers  to  be  put  to  interrogatories."]  his  executrix,  and  the  trustee  of  the 
1  [*2  My.  &  K.  7.32]  mortgaged  property,  for  the  benefit  of  the 
■■^  Hardman  r.  Ellames,  2  My.  &  K.  732;  cestui  que  trustent  under  the  will.  In 
Bligh  V.  Berson,  7  Price,  205  ;  Firkins  v.  consideration  of  these  advances  he  pur- 
Lowe,  13  Price,  103  ;  Farrar  v.  Hutchin-  chased  the  equity  of  redemption  from 
son,  3  Y.  &  C.  692 ;  Burton  v.  Neville,  2  the  trustee.  On  a  summons  to  compel 
Cox.  242.  him  to  produce  the  purchase  deed  and  the 
^  Hardman  v.  Ellames,  supra ;  Darwin  preliminary  agreement  in  a  redemption 
V.  Chirke,  8  Ves.  158.  And  see  Story,  suit  by  two  of  the  cestui  que  trustent,  it 
Eq.  PI.  §  859  ;  Supra,  §  296.  [*  Where  a  was  held  that  they  must  be  produced,  as 
solicitor  was  charged  with  fraud,  and  a  de-  they  might  disclose  the  dealings  of  the 
ceased  client,  of  whom  there  was  no  legal  trustee  with  the  trust  property.  Smith  w. 
representative,  was  alleged  to  be  a  party  Barnes,  11  Jur.  N.  S.  924.] 
to  the  fraud,  it  was  held  that  the  solicitor  *  Anon.  14  Ves.  213,  214,  per  Ld.  El- 
must  produce  documents  bearing  on  the  don. 
transaction,  whether  his  own  or  those  of        *  Wheat  v.  Graham,  7  Sim.  61- 


264 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  VI. 


§  300.  The  discovery  and  production  of  documents  and  papers 
by  the  defendant,  may  be  successfully  resisted,  by  showing  that 
they  are  privileged,  either  by  professional  confidence,  or  by  their 
exclusively  private  character  ;  ^  or,  that  the  discovery  and  produc- 
tion would  tend  to  involve  him  in  a  criminal  charge;  or  subject 
him  to  a  penalty  or  punishment,  or  to  ecclesiastical  censures,  or  to 
a  forfeiture  of  his  estate.  All  these  classes  of  exemptions  having 
been  fully  treated  in  a  preceding  volume,  any  further  discussion 
of  them  in  this  place  is  superfluous.^  But  it  should  be  observed, 
that,  regularly,  the  grounds  of  exemption  on  which  the  discovery 
is  resisted  ought  to  appear  in  the  answer ;  though  sometimes  an 
affidavit  may  be  filed,  for  the  purpose  of  more  fully  showing  that 
the  documents  in  question  support  exclusively  the  title  of  the  de- 


1  [*  In  Lafone  v.  Falkland  Island  Com- 
pany, 4  Kay  &  J.  34,  it  was  held  that  an- 
swers to  inquiries  addressed  by  defendants 
in  England  to  their  agent  in  the  Falkland 
Islands,  by  direction  of  their  solicitor,  for 
the  purpose  of  procuring  evidence  in  sup- 
port of  defendants'  case,  are  within  the 
rule  as  to  protection.  "  The  true  test  in 
such  cases  is,  not  whether  the  person, 
who  is  at  a  distance  and  transmits  the  in- 
formation, is  the  agent  of  the  solicitor,  and 
sent  out  by  him,  but  whether,  in  trans- 
mitting that  information,  he  was  discharg- 
ing a  duty  which  properly  devolved  on 
the  solicitor,  and  which  would  have  been 
performed  by  the  solicitor  had  the  circum- 
stances of  the  case  admitted  of  his  perform- 
ing it  in  person."] 

2  See  ante,  Vol.  1 ,  §§  237  -  254,  451  -  453. 
[A  defendant  is  not  bound  to  produce,  by 
way  of  answer,  any  public  documentary 
evidence  of  which  he  is  the  official  keeper. 
Salmon  v.  Clagett,  3  Blandf  Ch.  Rep.  145. 
But  sec  Bercsford  r.  Driver,  11  Beav.  387.] 
[*  The  protection  aftbrded  to  political  doc- 
uments docs  not  depend  upon  the  (juestion 
whether  the  person  called  on  to  produce 
them  is  a  party  to  the  suit,  but  on  the 
ground  of  the  mischief  to  the  public  which 
would  arise  from  the  disclosure  of  such 
documents.  Wadeer  v.  East  India  Com- 
pany, 2  Jur.  N.  S.  407.  A  rector  of  a 
parish  filed  a  bill  to  recover  lands  and 
tithes  as  belonging  to  the  rectory.  The 
defendants  answered  as  to  the  tithes,  but 
refused  by  their  answer  to  give  any  dis- 
covery as  to  the  land.  JIdd,  that  they 
having  submitted  to  answer,  could  not 
refuse  discijvery  a.s  to  the  land  on  the 
ground  that  the  bill,  so  far  as  it  sought 
relief  as  to  the  lanil  was  demurrable,  as 
stating  only  a  legal  title  in  the  plaintiff, 
without   showing   any  grounds  for  equi- 


table relief.  Bates  v.  Christ's  College, 
Cambridge,  8  De  G.  Mac.  &  G.  726.  The 
reports  of  an  accountant  employed  by  a 
defendant's  solicitor  to  investigate  books 
are  privileged  from  production.  Walsh- 
am  V.  Stainton,  2  H.  &  M.  1.  A  trustee 
taking  counsel's  opinion  to  guide  him- 
self in  the  administration  of  his  trust, 
and  not  for  the  purpose  of  his  defence 
in  a  litigation  against  himself,  is  bound 
to  produce  them  to  his  cestui  que  trust, 
but  the  relation  of  trustee  and  cestui 
que  trust  must  for  that  purpose  be  first 
established.  A  mere  claimant  to  an  estate 
is  not  entitled  to  the  production  of  cases 
and  opinions  taken  by  a  trustee,  and  docu- 
ments accompanying  a  case  for  the  opinion 
of  counsel  are  privileged.  Wynne  v.  Hum- 
berston,  27  Beav.  421.  So  a  married 
woman,  living  apart  from  her  husband, 
must,  as  between  herself  and  her  hus- 
band, or  those  claiming  under  him,  dis- 
close all  correspondence  with  her  solicitor 
which  relates  to  business  in  which  she 
and  her  husband  were  mutually  inter- 
ested, and  in  which  there  was  nothing  ad- 
verse to  him.  But  where  her  interest  is  ad- 
verse to  her  husband,  and  where,  rightly  or 
wrongly,  she  acts  as  a  feme  sole,  her  commu- 
nications and  coVrespoudencc  will  be  privi- 
leged. Ford  V.  Ue  Fontes,  5  Jur.  N.  S. 
993.  A  communication,  to  come  within 
the  principle  of  privilege,  must  be  made  by 
a  solicitor  to  his  client,  or  vice  versa,  and 
also  in  relation  to  the  actual  thing  to  which 
the  interrogatory  relates.  It  is  not  suf- 
ficient that  the  knowledge  is  stated  to  have 
been  acciuired  during  the  subsistence  of  the 
relation  of  solicitor  and  client.  Marsh  v. 
Keith,  6  Jur.  N.  S.  11 82.  See  also  Thomas 
V.  Rawlings,  27  Beav.  140,  and  Black  v. 
Galsworthy,  3  L.  T.  N.  S.  399.] 


PART  VI.]      SOURCES,  MEANS,  AND  INSTRUMENTS   OF   EVIDENCE. 


265 


fendant,  and  relate  solely  to  his  defence,  or  are  otherwise  privi- 
leged ;  or  that  they  are  not  in  his  custody  or  power.^ 

§  301.  The  order  for  production  of  documents,  iu  American 
practice,  usually  directs  that  they  be  deposited  with  the  Clerk  of 
the  Court.  But  in  special  cases,  the  Court  will  order  that  they 
be  produced  at  the  defendant's  place  of  business,  or  at  the  office 
of  his  solicitor,  or  at  the  master's  office,  or  elsewhere,  according 
to  the  circumstances.  And  where  books  are  to  be  produced,  the 
defendant  will  have  leave  to  seal  up  and  conceal  all  such  parts  of 
them  as,  according  to  his  affidavit  previously  made  and  filed,  do 
not  relate  to  the  matters  in  question.^ 

[*  §  301  a.  Where  the  defendant  was  sued  in  Equity,  as  sur- 
viving partner  in  a  firm  of  commission  wine-merchants,  and  was 
required  to  set  out  in  his  answer  a  full  account  of  the  partnership 
transactions,  for  the  six  months  preceding  the  decease  of  the  for- 
mer partner,  it  was  held  not  sufficient  to  set  out  the  accounts,  by 
way  of  reference  to  a  book  in  which  they  were  contained,  on  the 
ground  that  the  persons  named  were  privileged  customers ;  and 
upon  exceptions  to  the  answer,  upon  that  ground,  it  was  declared, 


1  LlewelljTi  V.  Badeley,  1  Hare,  527. 
And  see  Morrice  v.  Swabv,  2  Beav.  500 ; 
3  Dan.  Ch.  Pr.  2066.  [A  defendant,  after 
answerinij;  that  he  had  not  personally  in- 
spected the  documents  in  his  possession 
relating  to  the  subject  of  the  suit,  stated 
that  he  was  advised,  and  that,  to  the  best 
of  his  knowledge,  information,  and  belief, 
it  was  the  fact,  that  the  documents  did  not, 
nor  did  any  of  them  in  any  way,  make  out, 
or  evidence,  or  support,  or  tend  to  make 
out,  or  evidence,  or  support,  the  case  or 
any  part  of  the  case,  made  by  the  plaintiff, 
nor  defeat  or  impeach  the  case  of  defence, 
nor  any  part  of  the  case  or  defence,  of  the 
defendant,  but  were  evidence  in  support  of 
the  defendant's  case.  Held,  that,  as  it  ap- 
peared that  the  defendant  had  not  inspect- 
ed the  documents,  they  were  not  protected 
from  the  order  for  their  pi-oduction.  Man- 
by  V.  Bewicke,  39  Eng.  Law  &  Eq.  412 ; 
Att'y-Gen.  v.  London,  2  Mac.  &  Gord.  247.] 
[*In  a  bill  for  an  account  the  plaintiff 
charged  fraud  and  wilful  neglect  against 
the  defendants,  who  interrogated  him  as  to 
invoices  and  other  documents  in  his  (the 
plaintiff's)  possession.  The  plaintiff's  an- 
swer alleged  that  they  were  at  New  Or- 
leans, and  that  he  was  unable  to  commu- 
nicate with  his  clerks  there  or  to  proceed 
thither  to  fetch  them.  The  defendant  ex- 
cepted to  this  answer.  Held,  that  such 
documents,  wluch  tended  to  establish  or 
disprove  the  fraud  charged,  must  be  pro- 


duced before  the  hearing,  and  were  not  fit- 
ting subjects  of  an  inquiry  in  chambers  ; 
and  that  the  plaintiff  was  bound  to  show 
that  he  has  attempted  to  obtain  the  docu- 
ments and  failed  in  that  attempt,  a  mere 
allegation  that  they  are  in  a  country  where 
war  is  raging  not  being  sufficient.  Mer- 
tens  V.  Haish,  8  L.  T.  N.  S.  561.] 

-  See  1  Hoffm.  Ch.  Pr.  306-319,  where 
the  law  on  the  subject  of  the  production  of 
documents,  with  the  cases,  will  be  found 
fully  stated.  The  violation  of  the  seals, 
by  the  adverse  party,  is  punishable  as  a 
contempt.  Dias  v.  Merle,  2  Paige,  494. 
And  see  2  Dan.  Ch.  Pr.  2064  -  2066  [*  3d 
Amer.  Ed.  1388];  Napier  v.  Staples.  2 
Moll.  270 ;  Titus  v.  Cortelyou,  1  Barb. 
444.  [Where  the  answer  sets  forth  ex- 
tracts from  the  defendant's  books,  which 
are  sworn  to  embrace  everything  in  the 
books  that  relates  to  the  subject-matter  of 
the  suit,  the  plaintiff  cannot,  upon  motion, 
and  on  suggestion  that  the  extracts  given 
are,  if  not  garbled,  at  least  liable  to  sus- 
picion, entitle  himself  to  a  general  inspec- 
tion of  the  books  of  the  defendant  relating 
to  other  matters.  He  is  entitled  to  the 
production,  for  inspection,  of  the  books 
which  contain  the  extracts  given,  but  the 
defendant  is  at  liberty  to  seal  up  the  other 
parts  of  the  books,  and  the  inspection  must 
take  place  under  the  supervision  of  an  of- 
ficer of  the  Court.  Robbins  v.  Davis,  1 
Blatchf.  C.  C.  238.] 


2G6  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

that  the  defendant  ought  to  have  set  out  the  account  in  a  sched- 
ule in  his  answer,  and  that  tlie  objection  that  the  names  of  the 
customers  were  privileged  did  not  apply  to  such  a  case.^] 

§  302.  We  have  spoken  of  the  production  of  documents  by  the 
defendant,  because,  by  the  regular  course  of  practice  in  Chancery, 
it  is  only  by  means  of  a  bill,  and  therefore  only  by  a  plaintiff,  that 
a  discovery  can  be  obtained ;  and,  therefore,  if  the  defendant 
would  obtain  the  production  of  documents  from  the  plaintiff,  he 
must  himself  become  a  plaintiff,  by  filing  a  cross-bill;  in  which 
case  all  the  preceding  rules  will  apply  in  his  favor,  against  the 
plaintiff  in  the  original  bill.^  But,  ordinarily,  no  answer  to  the 
cross-bill  can  be  obtained,  until  the  defendant  has  filed  a  full  an- 
swer to  the  original  bill,  and  complied  with  the  order  for  the  pro- 
duction of  documents  on  his  part.^ 

§  303.  This  general  rule,  that  when  a  defendant  would  obtam 
the  discovery  and  production  of  documents  from  the  plaintiff,  he 
can  obtain  it  onli/  by  a  cross-bill,  is  dispensed  with  in  a  few  cases 
in  the  English  practice,  constituting  exceptions  to  the  rule.  For- 
merly, when  a  document  in  the  plaintiff's  possession,  mentioned 
in  the  bill,  was  necessary  to  the  defendant,  for  the  making  of  a  full 
answer,  tlie  Court  has  sometimes  ordered  the  plaintiff  to  give  him 
a  copy  of  it ;  and  at  other  times  the  Court  has  stayed  proceedings 
against  the  defendant,  for  not  putting  in  his  answer,  until  the 
plaintiff  would  give  him  an  inspection  of  the  documents  in  ques- 
tion ;  especially  if  both  parties  were  equally  entitled  to  the  posses- 
sion ;  as,  for  example,  in  the  case  of  partnership  books.*  And  in 
a  more  recent  and  celebrated  case,  where  the  plaintiff,  in  a  bill 
against  executors,  stated  that  two  promissory  notes,  of  the  same 

1  [*  Pelford  I,-.  Ruskin,  1   Drew  &  Sm.  bill.     [Bofrcrt  v.  Bofjert,  2  Edw.  Ch.  399  ; 

148.     But  we  apprehend  that  in   such  a  White  v.  Buloid,  2  Paise,  Ch.  164 ;  Field 

case,   unless   the  names   of  the   customers  v.  Scliicffelin,  7  Johns.  Ch.  252 ;  Talmage 

were  verv   essential,   the  court  would  not  v.  Pell,  9  PaiLje,  Ch.  410.  | 

require  them  to  be  set  out  upon  the  sched-  »  3  p.^n.  Ch.  Pr.  2069  [«  3d  Amer.  Ed. 

ulc.     And  where  interrogatories  are  in  a  1390]  ;  Pr.  of  Wales  ?•.  E.  of  Liveri)Ool,  I 

form  which  would  make   it   opiiressive  to  Swanst.  123,  124.     This  rule  is  expressly 

require  a  detailed  answer,  a  defendant  may  adopted  as  a  rule  of  practice,  in  cases  in 

answer  by  reference  to  books,  but  he  must  Equity,  in  the  national  courts  of  the  United 

refer  to   them  with  such  explanation  and  States,  and  in  the  courts  of  some  of  tho 

in  such  a  manner  as  to  make  it  as  con-  several  States.     See  Rules  U.  S.  Courts  in 

vcnient  as  possible  for  the  plaintiff  to  con-  Equity     Cases,    Rej:.    72  ;    Maasdchuselts, 

suit  them.     Drake  v.  Svmes,  1  Johns.  647  ;  Rules"in  Chancery,  Rej,'.  13  ;  Illinois,  Rev. 

G  Jur.  N.  S.  318.]         ■  Stat.   1845,  ch  21,  §  29;  Florida,  Thomp- 

■'  See  I'enfold  r.  Niinn,  5  Sim.  409,  that  son's  Diir.  p.  459,  §  11. 

a  defendant  cannot  obtain  such  production  ■*  3  Dan.  Ch.  Pr.  2070,  2071  [*3d  Amer. 

from     the    plaintiff,    merely    by    motion,  Ed.  1-391]  ;  1    Swanst.  124,  125 ;  Potter  v. 

thou;:ch  he  makes  oath  that  an  inspection  Potter,  3  Atk.  719  ;  Pickering  v.  Rigby,  18 

is  necessary  to  enable  hiui  to  answer  the  Ves.  484. 


PART  VI.]      SOURCES,  MEANS,  AND  INSTRUMENTS   OF   EVIDENCE.  267 

date,  had  been  given  by  the  testator,  the  one  in  English  and  the 
other  in  French  currency,  but  of  the  same  amount  and  for  secur- 
ing the  payment  of  the  one  single  sum  of  £  15,000,  mentioned  in 
both  notes ;  one  of  the  executors  made  affidavit  that  he  had  in- 
spected the  former  of  the  two  notes  and  had  observed  appearances 
on  it  tending  to  impeach  its  authenticity ;  and  that  he  was  in- 
formed and  l)elieved  that  the  latter  note  had  been  produced  for 
payment  in  Germany,  and  that  an  inspection  of  it  was  necessary, 
before  he  could  make  a  full  answer  to  the  case  stated  in  the  bill ; 
and  moved  that  he  might  have  time  to  make  answer  after  such  in- 
spection should  be  given  ;  it  was  held  by  Lord  Eldon  that  this 
was  sufficient  ground  to  entitle  the  defendants  to  a  production  of 
the  instrument  before  answer ;  and  accordingly  it  was  ordered, 
that  the  plaintiiT  be  at  liberty  to  come  at  any  time  in  reply  to  the 
affidavit,  and  that  in  the  mean  time  the  defendants  should  not  be 
called  on  to  answer,  until  a  fortnight  after  the  instrument  had 
been  produced. ^  But  in  this  country,  in  ordinary  cases  not  regu- 
lated by  statute,  the  plaintiff  cannot  be  compelled,  on  motion,  to 
give  the  defendant  an  inspection  of  his  books  and  documents,  in 
order  to  enable  the  defendant  to  answer  the  bill  and  make  his 
defence ;  but  if  the  plaintiff,  on  request,  refuses  to  permit  such  in- 
spection of  books  and  documents,  he  will  not  be  allowed  to  except 
to  the  answer  for  insufficiency  in  not  stating  their  contents.^  In 
cases  of  partnership,  however,  where  the  controversy  is  between 
the  partners  or  their  representatives,  the  party  having  possession 
of  the  partnership  books  and  papers  will  be  ordered,  on  motion, 
and  in  any  stage  of  the  suit,  to  place  them  in  the  hands  of  an  offi- 
cer of  the  Court,  for  tlie  inspection  of  the  other  party,  and  that 
he  may  take  copies  if  necessary.^  And  if  documents  are  im- 
peached by  either  party  as  false  and  fraudulent,  they  will  be  or- 
dered to  be  brought  into  Court  for  inspection.* 

§  304.    But  in  the  Federal  Courts  of  the  United  States,  the  ne- 
cessity for  resorting  to  the  Equity  side,  by  a  bill  for  the  discovery 

1  The  Princess  of  Wales  !\  E.  Liverpool,  Morris,  1  Beav.  175.     But  its  soundness, 

1  Swanst.  114,  115,  125-127.     The  same  as  a  general  rule,  was  questioned  by  the 

rule  was  administered  in  Jones  v.  Lewis,  2  Vice-Cliancellor  of  England,  in  Fenfold  v. 

Sim.  &  Stu.  242;    and  though  the  order  Nunn,  5  Sim.  410,  and  again  in  Milligan 

was  discharged  by  Lord  Eldon,  on  appeal,  v.  Mitchell,  6  Sim.  186. 

4  Sim.  324,  yet  the  ground  of  the  discharge  ^  Kelly  i'.  Eckford,  5  Paige,  548. 

does  not  appear,  and  it  is  hardly  probable  ^  Ibid.     [See  also  Christian  ».  Taylor, 

that  he  intended  to  reverse  his  previous  de-  11  Sim.  400.] 

cision  in  the  case  above  mentioned.     The  *  Comstock  v.  Apthorpe,  1   Hopk.  Ch. 

same  rule  was  also  adopted  in  its  principle  R.  143  ;  8  Cowen,  .'386,  S.  C. 
by  Lord  Langdale,  M.  R.,  in  Stephen  v. 


268  LAW   OF   EVIDENCE  IN   EQUITY.  [PART  VI. 

of  documents  in  aid  of  the  jurisdiction  at  Law,  is  entirely  obvi- 
ated by  the  statute,^  which  empowers  all  the  Courts  of  the  United 
States,  in  the  trial  of  actions  at  Law,  on  motion,  and  due  notice 
thereof  being  given,  to  require  the  parties  to  produce  books  or 
writings  in  their  possession  or  power,  which  contain  evidence  per- 
tinent to  the  issue,  in  cases  and  under  circumstances  ivhere  they 
might  he  compelled  to  produce  the  sajne  hy  the  ordinary  rules  of  pro- 
ceeding in  Chancery.  And  if  a  plaintiff  shall  fail  to  comply  with 
Buch  order  to  produce  books  or  writings,  it  is  made  lawful  for  the 
respective  Courts,  on  motion,  to  give  the  like  judgment  for  the 
defendant  as  in  cases  of  nonsuit ;  and  if  the  defendant  shall  fail 
to  comply  with  such  order,  judgment  may  be  entered  against  him 
by  default.  Under  this  statute  it  is  requisite,  whenever  a  judg- 
ment by  nonsuit  or  default  is  intended  to  be  claimed,  that  notice 
be  given  to  the  adverse  party  to  produce  the  papers  in  question, 
describing  them  with  sufficient  particularity,  and  stating  that  on 
his  failure  to  produce  them  it  is  intended  to  move  for  judgment 
against  him.  This  judgment  is  obtained,  after  a  rule  nisi  for  the 
production  of  the  papers,  granted  on  motion,  supported  by  the 
affidavit  of  the  party  applying.^  If  the  adverse  party  makes  oath 
that  he  has  not  the  papers,  this  may  be  met  by  the  oath  of  two 
witnesses,  or  of  one  with  other  corroborating  and  preponderating 
evidence.^ 

1  Stat.  U.  S.  1789,  ch.  20,  §15;  [1  Stat,  documents,  acknowledged  or  proved  be- 
at Large,  82 ;]  Geyger  v.  Geyger,  2  Dall.  fore  the  proper  magistrate  or  Court  in 
332.  the  mode  provided  by  law,  are  admissible 

2  Hvlton  V.  Brown,  1  Wash.  C.  C.  R.  as  prima  facie  evidence.  See  anie,  Vol.  1, 
298,  .300  ;  Bas  v.  Steele,  3  Wash.  381,  386 ;  §§  91,  571,  n.  573,  and  note.  In  some  of 
Dunham  v.  Riley,  4  AVash.  126;  United  these  States,  and  in  others,  also,  summary 
States  V.  Pins,  Gilp.  306.  [See  also  Vasse  modes  are  established  for  the  discovery 
V.  Mifflin,  4  Wash.  C  V.  519.]  and  production  of  books,  papers  and  docu- 

■*  Hyitoiw.  Brown,, <;((/<m  ;  Ba.ss  I'.  Steele,  ments,  whenever  they  are  material  to  the 

supra.     This  statute  is  held  not  to  apply  to  support   or  defence  of  any  civil  action  or 

proceedings  (Vi  y'pm;  because  a  judgment  as  suit.     Thus,  by   the   Revised    Statutes  of 

by  default  cannot  be  rendered  against  a  de-  New  York,  the  Supreme  Court  is  cmpow- 

feiidant,  in  proceedings  of  that  kind  ;  and  ered,  in  such  cases  as  shall  be  deemed  prop- 

becausc  Chimcery  will  not  compel  a  party  er,  to  compel   any  ])arty  to  a  suit  pending 

to  produce  evidence  which  would  subject  therein  to  produce  and  di.scover  books,  pa- 

him  to  a  forfeiture.     United  States «;.  Pins,  pers,  and  documents  in  his  possession  or 

Gilp.  306.  power,  relating  to  the  merits  of  any  such 

In  niost  of  the  several  States,  also,  the  suit,  or  of  any  defence  therein.  2  Rev.  Stat, 

necessity  for  a  bill  of  discovery  of  docu-  p.  262,  tit.  3,  part  3,  ch.  1,§30.    To  entitle 

ments  is  cither  entirely  done  away,  or  in  a  a  party  to  any  such  di.scovery,  he  is  rc(iuired 

great  dcgri'c  obviated,  by  statutory  provi-  to  present  a  petition,  verified  by  oath,  to  the 

sions  and   Rules   of  Practice.     In   all  the  Court,  or  any  Justice    thereof,  or  to  any 

States,  it  is  believed,  office-copies  of  deeds  Circuit  Judge  in  vacation,  upon  which  an 

and  other  documents  required  by  law  to  be  order   may  be  granted  for  the  discovery 

registerc<l,  may  l>e  read  in  evidence  by  any  sought,  or  that  the  party  against  whom  the 

party,  other  than  the  grantee  or  obligee,  discovery  is  sought  shoukl  show  cause  why 

and  in  many  of  the  States,  deeds  and  other  it  should  not  be  granted.    Id.  §  32.    Every 


PART  VI.]      SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE. 


269 


§  305.  If  documents,  the  production  of  which  is  desired,  are  in 
the  possession  of  one  who  is  not  a  parti/  to  the  suit,  he  may  be  com- 
pelled by  a  subpoena  duces  tecum,  to  produce  them ;  and  if  the  sub- 
poena is  not  obeyed,  he  will  be  punished  for  contempt,  on  proof  by 
affidavit  that  the  documents  are  in  his  custody.^ 


such  order  may  be  vacated  by  the  Court 
or  magistrate  by  whom  it  was  granted, 
upon  satisfactory  evidence  that  it  ought 
not  to  have  been  granted ;  or,  upon  the 
discovery  sought  having  been  made ;  or, 
upon  the  party,  required  to  make  the  dis- 
covery, denying  on  oath  the  possession  or 
control  of  the  books,  papers,  or  documents 
ordered  to  be  produced.  Id.  §  3.3.  The 
books,  papers,  and  documents,  thus  pro- 
duced are  allowed  the  same  effect,  when 
used  by  the  party  requiring  them,  as  if 
produced  upon  notice.     Id.  §  36. 

By  the  Code  of  Practice,  as  amended  in 
1849,  the  Court  before  which  an  action  is 
pending,  or  any  Judge  or  Justice  thereof, 
may,  in  their  discretion,  and  upon  due 
notice,  order  either  party  to  give  to  the 
other,  within  a  specified  time,  an  inspection 
and  copy,  or  permission  to  take  a  copy,  of 
any  hooks,  papers,  and  documents  in  his 
possession  or  under  his  control,  containing 
evidence  relating  to  the  merits  of  the  ac- 
tion, or  the  defence  therein.  If  compliance 
with  the  order  be  refused,  the  Court,  on 
motion,  may  exclude  the  paper  from  being 
given  in  evidence,  or  punish  the  party  re- 
fusing, or  both.  New  York  Code  of  Prac- 
tice, §  388  [342]. 

These  two  provisions,  of  the  Revised 
Statutes  and  of  the  Code  of  Practice,  have 
been  deemed  to  stand  well  together,  the 
former  not  being  repealed  by  force  of  the 
latter.  Follett  v.  Weed,  1  Code  Rep.  65  ; 
Dole  V.  Fellows,  1  Code  Rep.  146,  N.  S. 
And  see  Brown  v.  Bahcock,  1  Code  Rep. 
66  :  Stanton  v.  Del.  Mut.  Ins.  Co.,  2  Sandf. 
S.  C.  H.  602;  Moore  v.  Pentz,  Id.  664. 
And  the  power  thus  vested  in  the  Court 
has  hem  held  to  e.xtend  to  all  cases  where 
one  party  desires  to  ascertain  what  docu- 
mentary evidence  his  adversary  holds  upon 
which  he  is  relying  to  sustain  himself  upon 
the  trial;  as  well  as  to  cases  where  evi- 
dence is  sought  in  support  of  his  own  title. 
Powers  V.  Elemcndorf,  2  Code  Rep.  44. 

By  another  provision  of  the  same  Code, 
no  action  to  obtain  discovery  under  oath, 
in  aid  of  the  prosecution  or  defence  of  an- 
other action  can  be  allowed,  nor  can  any 
examination  of  a  party  be  had,  on  behalf 
of  the  adverse  party,  except  in  the  manner 
afterwards  prescribed  in  the  same  Code, 
namely,  as  a  witness,  and  in  the  manner  of 
any  other  witness.  N.  York  Code  of  Prac- 
tice, §  3S9.  This  section  is  held  merely  to 
aboUsh  the  Chancery  bill  for  discovery; 
and  not  to  effect  the  mode,  by  petition, 


prescribed  in  the  Statutes  or  Code.  Fol- 
lett V.  Weed,   supra. 

Regulations,  substantially  to  the  same 
effect,  in  regard  to  the  production  of  docu- 
ments, &c.,  may  be  found  in  the  Statutes 
of  Iowa,  Code  of  1851,  §§  2423-2425  ;  Ar- 
kansas, Rev.  Stat.  1837,  ch.  23,  §§  50  -  53  ; 
Missouri,  Rev.  Stat.  1845,  ch.  136,  art.  4, 
§§7-19;  Id.  ch.  137,  art.  2,  §§31 -34* 
Illinois,  Rev.  Stat.  1845,  ch.  83,  §  12;  Lou- 
isiana, Code  of  Practice,  art.  140-142, 
§§  473  -  475,  917  -  919,  1037  ;  and  Indiana, 
Rev.  Stat.  1852,  part  2,  ch.  1,  §§  304-306. 
See  also  California,  Rev.  Stat.  1850,  ch. 
142,  §§  294,  295 ;  Georgia,  1  Cobb's  Dig. 
pp.  463,  465  ;  Rev.  Stat.  1845,  p.  529,  ch. 
19,  art.  7,  §  146  ;  Florida,  Thompson's  Dig. 
p.  459,  §  U. 

In  Virginia,  it  is  at  the  option  of  a  party 
either  to  file  a  bill  in  Chancery  for  the  dis- 
covery and  production  of  books  and  writ- 
ings, or  to  apply  to  a  commissioner  of  the 
Court,  by  petition  and  affidavit,  alleging 
his  belief  of  the  possession  of  such  books 
and  writings  by  the  other  party,  and  their 
materiality  as  evidence  for  him  and  de- 
scribing them  with  reasonable  certainty; 
in  which  case  the  Court,  after  notice  to  the 
adverse  party,  being  satisfied  of  the  truth 
of  the  allegations,  and  that  the  petitioner 
has  no  other  means  of  proving  the  contents 
of  the  books  and  papers,  will  compel  their 
production ;  unless  the  adverse  party  shall 
answer  upon  oath  that  they  are  not  un- 
der his  control.  Code  of  1849,  ch.  176, 
§§  39,  40. 

In  Blaine,  the  party  requiring  the  produc- 
tion of  books,  papers,  or  documents  in  the 
possession  of  the  opposite  party,  may  file  a 
rule  with  the  clerk,  and  give  notice  of  it  to 
the  other  party,  stating  the  fact,  the  ground 
of  his  claim  of  discovery  and  production, 
its  necessity,  and  the  time  and  place ;  and 
if  the  parties  do  not  dispose  of  the  subject 
by  mutual  arrangement,  copies  of  the  rule 
and  proceedings  may  be  transmitted  to  one 
of  the  Judges,  whose  decisions  and  direc- 
tions will  be  binding  on  the  parties.  Maine 
Sup.  Jud.  Court  Rules  in  Chancery,  Reg. 
17.  In  Maryland,  the  Chancellor  is  em- 
powered, by  statute,  on  application  of 
either  party  on  oath,  to  order  and  decree 
the  production  of  any  books,  writings,  or 
papers  in  the  possession  of  the  other  party, 
containing  evidence  relative  to  the  matters 
in  dispute  between  them.  Stat.  1798,  ch. 
84,  §  2  (Dorsey's  ed.). 

1  See  ante,  Vol.  1,  §§  558,  559, 


270  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

§  306.  In  regard  to  documents  produced  on  notice,  it  has  already 
been  stated  as  the  rule  at  Law,  that  ordinarily,  the  party  calling 
for  their  production  and  offering  them  in  evidence,  must  prove 
their  execution,  notwithstanding  they  came  out  of  the  custody  of 
the  adverse  party,  and  are  produced  at  the  trial ;  and  that  an  ex- 
ception to  this  rule  is  allowed,  where  the  party  producing  the  in- 
strument is  himself  a  party  to  it,  claiming  under  it  an  abiding 
interest  in  the  subject  of  the  action;^  or  where  the  instrument 
was  taken  by  the  party  producing  it,  in  the  course  of  his  official 
duty  as  a  public  officer,  as,  for  example,  a  bail-bond,  taken  by  the 
sheriff,  and  produced  by  him  on  notice.^  In  Equity  this  rule 
holds  good  to  its  full  extent,  as  to  documents  in  the  hands  of  a 
plaintiff ;  but  it  is  said  that,  as  to  documents  in  the  hands  of  a 
defendant,  the  rule  applies  only  to  those  of  which  the  plaintiff  is 
entitled  to  call  for  an  inspection,  but  which  the  defendant  has  in- 
sisted on  some  privilege  to  withhold.^ 

§  307.  The  effect  of  an  order  for  the  production  of  documents  is 
only  to  give  the  party  obtaining  the  order  the  right  to  inspect  and 
take  copies  of  them.  It  does  not  make  them  evidence  in  the 
cause,  except  in  those  cases  in  which  the  mere  circumstance  of 
their  coming  out  of  the  custody  of  the  other  party  would,  in  itself, 
render  them  admissible.  If,  therefore,  the  party  obtaining  the 
order  wislies  to  have  them  proved  in  the  cause,  or  produced  at  the 
hearing,  the  order  should  be  specially  framed  for  that  purpose. 
The  order  itself  establishes  the  fact,  that  the  documents  came  out 
of  the  adverse  party's  custody,  into  the  hands  of  the  officer  of  the 
Court ;  and  therefore,  when  they  are  produced  in  answer  to  a  bill 
of  discovery,  it  is  not  necessary,  for  the  purpose  of  proving  this 
fact,  to  read  any  part  of  the  answer.* 

§  308.  Having  thus  considered  the  subject  of  the  production, 
we  proceed,  in  the  second  place,  to  the  proof  of  documents.     And 

1  Ante,  Vol.   1,  §§  560,  571;    Betts   v.  traffic  of  a  railway  company,  with  liberty 

Ba(lf,'er,  12  Johns.  223 ;  Jackson  v.  Kings-  for  the  plaintiff",  "  his  solicitors  and  agents, 

ley,  .' 7  Jolms.  1 .58.  to    inspect,    peruse,    and    take   copies,  the 

'•^  Scott  t\  Waithman,  3  Stark.  168.  plaintiff's   solicitor  went  to  inspect  them, 

^  Gresley  on  Evid.  p.  173.     If  a  docu-  accompanied  by  a  professional  accountant, 

ment  is  stated   in   the  bill,  and  admitted  who  was  the  auditor  of  a  neij;liborin<r  r.iil- 

and  referred  to  in  the  answer,  it  cannot  be  way  company.     Held,  that  tlie  cor.neetion 

read   from   the   bill,  but  oiijrht  still  to  be  of  the  accountant  witli  the  otiier  company 

produced.     Co.x  v.  jVUinjrham,  Jac.  339.  made  him   an  improper  person  to  inspect 

^  3  Dan.  Cli.  i'r.   206S  [*  3d  Amer.  Ed.  the  books,  and  tliat  the  plaintitf  oui;iit  not 

1389]  ;  Tavlor  v.   vSalmon,  3   My.   &   Cr.  to  have  introduced  him.     Drajicr  ;•.  .Man- 

422.      And'  sec  ante.  Vol.  1,  §§560-563.  Chester,  Sliclfield  &  Lincolnshire  Railway 

[*  An  order  havin^f  licen  made  for  produc-  Company,  3  DcG.  F.  &  J.  23. j 
tiou   of  books  of  account  relating  to  the 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  271 

here  it  may  be  generally  observed,  that  written  instruments,  the 
execution  of  which  is  not  admitted,  and  which  do  not  prove  them- 
selves, must  be  proved  by  the  same  evidence  in  Equity  as  at  Law.i 
The  evidence  for  this  purpose  is  taken  in  the  mode  in  which  other 
evidence  is  taken  in  Chancery  proceedings,  which  is  ordinarily  by 
depositions  before  an  examiner,  commissioner,  or  other  officer,  and 
which  will  hereafter  be  stated. ^ 

§  309.  In  certain  cases,  however,  constituting  exceptions  to  this 
general  rule,  witnesses  may  be  examined  vivd  voce  at  the  hearing ; 
namely,  first,  where  the  plaintiff,  finding  sufficient  matter  con- 
fessed in  the  answer  to  entitle  him  to  a  decree,  sets  down  the 
cause  for  a  hearing  upon  the  bill,  answer,  and  exhibits  ;  and,  sec- 


^  Ante,  Vol.  1,  §§564-584;  2  Dan. 
Ch.  Pr.  1024.  For  the  law  respecting'the 
proof  of  Deeds,  see  ante,  Vol.  2,  tit.  Deed, 
§§293-299. 

It  is  proper  in  this  place  to  mention  the 
provision  made  in  the  statntes  of  some  of 
the  States,  for  the  solemn  admission  of  the 
genuineness  of  documents  intended  to  be 
used  in  the  trial  of  causes,  whether  at  Law 
or  in  Equity  The  provision  on  this  sub- 
ject, in  the  New  York  Code  of  Practice, 
§388  [341],  is  in  the  following-  words: 
"  Either  party  may  exhibit,  to  the  other  or 
to  his  attorney,  at  any  time  before  the  trial, 
any  paper  material  to  the  action,  and  re- 
quest an  admission  in  writing  of  its  genu- 
ineness. If  the  adverse  party  or  his  attor- 
ney fail  to  give  the  admission,  within  four 
da_vs  after  the  request,  and  if  the  party 
exhibiting  the  paper  be  afterwards  put  to 
expense  in  order  to  prove  its  genuineness, 
and  the  same  be  finally  proved  or  admitted 
on  the  trial,  such  expense,  to  be  ascer- 
tained at  the  trial,  shall  be  paid  by  the 
party  refusing  the  admission  ;  unless  it  ap- 
pear, to  the  satisfaction  of  the  Court,  that 
there  were  good  reasons  for  the  refusal." 
The  same  regulation  is  enacted  in  Califor- 
nia.    Rev.  Stat.  IS.iO,  ch.  142,  §  294. 

In  other  States,  provision  to  the  like 
effect  is  made  by  the  Rules  of  Court.  And 
in. several  States,  where  the  suit  or  defence 
is  professedly  founded  in  whole  or  part  on 
the  deed  or  other  instrument  in  writing  of 
the  adverse  party,  it  is  admissible  in  evi- 
dence without  proof,  unless  such  party 
shall  expressly  deny  its  genuineness  under 
oath.  See  Texas,  Hartl.  Dig.  art.  633, 
634,  741,  742;  Wisconsin,  Rev.  Stat.  1849, 
ch  98,  §  85;  Arkansas,  Rev.  Stat.  1837, 
ch.  116,  §  10;  Missouri,  Rev.  Stat.  1845, 
ch.  136,  §  23;  Ohio,  Rev.  Stat.  1841,  ch. 
46,  §  18;  Virginia,  Code  of  1849,  ch.  171, 
§  38;    Illinois,  Rev.   Stat.    1845,   ch.    83, 


§  14;  Indiana,  Rev.  Stat.  1852,  part  2,  ch.  1, 
§  304. 

The  mode  of  proving  public  and  private 
documents  has  been  fully  treated,  ante.  Vol. 
1,  §§  479-491,  501  -521,  569-582. 

^  When  a  document  or  paper  is  proved 
by  the  deposition  of  a  witness,  it  is  usual 
for  the  magistrate  or  officer,  who  takes  the 
deposition,  to  mark  it  with  a  capital  letter, 
and  to  certify  thereon  that  "  this  paper, 
marked  with  the  (A)  was  exhibited  to  the 
deponent  at  the  time  of  his  being  sworn  by 
me,  and  is  the  same  by  him  referred  to  in 
his  deposition  hereto  annexed  " ;  or  "  taken 
before  me  on  "  such  a  day,  &c. ;  and  hence 
such  documents  and  papers  are  termed 
Exhibits.  The  same  term  is  also  applied 
to  instruments  which,  on  being  exhibited  to 
the  adverse  party,  are  thereupon  solemnly 
admitted  by  him  to  be  genuine,  and  may 
therefore  be  read  in  evidence  without  other 
proof;  and  is  also,  but  with  less  accuracy, 
applied  to  certified  official  copies,  admissi- 
ble without  other  proof,  and  filed  in  the 
Clerk's  office,  together  with  the  bill  or 
answer,  to  be  read  at  the  hearing.  Exhib- 
its proved  by  depositions,  should  either 
be  annexed  to  them,  or  so  designated  as  to 
leave  no  reasonable  doubts  of  their  iden- 
tity. Dodge  V.  Israel,  4  Wash.  323.  In 
Georgia,  it  is  required  tliat  copies  of  all 
deeds,  and  writings,  and  other  exhibits  be 
filed  with  the  bill  or  answer ;  and  no 
other  exhibits  are  to  be  admitted,  unless 
by  order  of  Court,  for  cause  shown.  Origi- 
nals, not  admitted  in  the  answer,  may 
be  required  at  the  hearing ;  and  on  appli- 
cation to  the  Court,  or  to  a  Judge  in  vaca- 
tion, originals  may  be  ordered  to  be 
deposited  in  the  Clerk's  office,  for  the 
inspection  of  the  adverse  party.  Rules  of 
the  Superior  Court,  in  Equity,  1846,  Reg. 
17,  Hotchk.  Dig.  p.  955. 


272  LAW   OF   EVIDENCE  IN   EQUITY.  [PART  VI. 

ondly,  where  documents,  letters,  or  other  writings,  essential  to  the 
justice  of  the  cause,  have  been  omitted  to  be  proved  before  publi- 
cation. But  this  is  a  limited  indulgence,  granted  only  to  the 
party  who  is  to  use  the  documents ;  and  is  obtained  by  a  special 
order,  granted  on  motion,  after  notice  to  the  adverse  party,  the 
documents  and  writings  to  be  proved  being  described  with  suffi- 
cient particularity,  both  in  the  motion  and  in  the  order,  and  the 
omission  of  previous  proof  being  satisfactorily  accounted  for.i  If 
a  replication  has  been  filed,  and  the  plaintiff's  testimony  is  a  mere 
exemplification  of  a  record,  which  proves  itself,  he  may  read  it  at 
the  hearino-,  on  giving  seasonable  notice  to  the  defendant  of  his 
intention,  so  that  he  may  examine  witnesses  to  explain  or  rebut 
its  effect,  if  it  can  be  explained.^  But  the  course  of  the  Court  of 
Chancery  is  to  confine  the  proof  at  the  hearing  to  the  verification 
of  exhibits,  excluding  all  examinations  as  to  other  facts  ;  and  not 
to  refuse  a  party  the  liberty  of  proving  them  in  that  mode,  where 
it  can  be  done,^  unless  the  execution  or  authenticity  itself  of  the 
instrument  is  expressly  denied,  and  is  the  point  in  controversy.* 
If  the  execution  of  the  instrument  is  neither  admitted  nor  denied 
by  the  defendant,  it  may  be  proved  vivd  voce  at  the  hearing.^ 

§  310.  Though  in  the  proof  of  exhibits,  the  course  of  examina- 
tions vivd  voce  at  the  hearing,  in  modern  practice,  does  not  necessa- 
rily  exclude  every  question  that  would  admit  of  a  cross-examina- 
tion, yet  it  is  restricted  to  a  few  simple  points,  such  as  the  manual 
execution  of  the  instrument,  by  the  testimony  of  the  subscribing 
witness,  or  by  proof  of  the  signature  or  handwriting  of  an  instru- 
ment or  paper  not  attested ;  or  the  custody  and  identity  of  an  an- 
cient document,  produced  by  the  librarian  or  registrar ;  the  accu- 
racy of  an  office-copy,  produced  by  the  proper  officer,  and  the 

1  o  Dan  Ch  Pr.  1025  - 1030  [*  3d  Amer.  «  Mills  v.  Pittman,  1  Paipe,  490.    And 
Fd    876 -SS'']-    1    IIoflFm.   Ch.  Pr.   490;  seePardce  v.  De  Cala,  7  Pai-e,  132  ;  Bach- 
Gr'ivcs  V   Bud-el    1  Atk.  444  ;  Barrow  v.  elor  v.  Nelson,  Walk.  Cli.  449;    Millerr. 
Rhindandcr,   \  Johns.  Ch.  559  ;  Hu-hs  i;.  Avery,  2  Barb.  Ch.  R.  582                   _ 
Phelps,  3  Bibb,  199  ;  Hi-Kins  v.  Mills,  5  «  Graves  v    B"dscl,   1  Atk.   444,  Edg- 
Russ.  287  ;  Conseciua  v.  Fanning,  2  Johns,  worth  v.  Swift,  4  Bro.  P.  0.  058. 
Ch.  481.     And  see  Dana  v.  Nelson,  1  Aik.  *  Att'y-Genera   v.  Pearson   7  Sim.  303  ; 
252.     The   libertv  thus  frrantcd  has  been  Booth  r.  Crcswick,  8  Jur.  .323. 
cxtende.l  to  the  proof  of  exhibits  on  a  re-  ^  Rowland  v  t>turt:.s  2  Hare,  520.    And 
hearin.'  or  on  an  ai.i.eal,  wliieh  were  not  see  supra,  §  291  a.   [*  Un  an  ex  parte  apph- 
proved"  at  the  ori-i.uil  hearing,  or  which  cation  the  testimony  of  the  attesting  wit- 
have  been  sul)sequently  diseovered.    Walk-  ness  to  an  instninient  was  dispensed  with, 
err.  Svmonds,  1   Meriv.  37,  n.;  Hifrgins  there   being  a  dithculty  in  obtaining  hia 
V.    Mifls,  mpra;     Dale   v.    Roosevelt,    6  evidence.     Dierden  In   re,  10  Jur.  JN.  b. 
Johns.  Ch.  25G ;  Williamson  v.  Hutton,  9  673.] 
Price,  194. 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  273 

like.^  It  is  not  ordinarily  allowed  to  prove  in  this  mode  the  hand- 
writing of  attesting  witnesses  who  are  dead  ;^  nor  the  due  execu- 
tion of  a  will,  involving,  as  it  does,  the  sanity  of  the  testator;^ 
nor  a  deed  that  is  impeached  in  the  answer,  as  against  the  party 
impeaching  it;*  nor  a  book  or  ancient  map,  not  produced  by  an 
officer  to  whom  the  custody  of  it  officially  belonged.^  But  where 
the  instrument  or  paper  is  an  important  document,  leave  will  be 
granted  to  postpone  the  hearing  for  the  purpose  of  proving  it  by 
interrogatories  in  the  ordinary  mode.^  And,"  in  examinations  at 
the  hearing,  the  Court  will  sometimes  permit  a  cross-examination, 
and  will  itself  examine,  vivd  voce,  upon  the  suggestion  of  any 
question."  The  Court  will  also,  in  cases  in  which  any  exhibit 
may,  by  the  present  practice,  be  proved  vivd  voce,  at  the  hearing 
of  a  cause,  permit  it  to  be  proved  by  the  affidavit  of  the  witness 
who  would  be  competent  to  prove  the  same  vivd  voce  at  the 
hearing.^ 

§  311.  The  formal  proof  of  written  documents  in  a  cause  does 
not,  merely  on  that  ground,  entitle  the  adverse  party  to  inspect 
them  before  the  hearing ;  for  it  is  the  settled  course  of  Chancery, 
not  to  enable  a  party  to  see  the  strength  of  his  adversary's  case, 
or  the  evidence  of  his  title,  or  "  to  pick  holes  in  the  deed,"  until 
the  hearing  of  the  cause.^  But  where  an  inspection  has  been 
called  for  and  had,  the  instruments  are  admissible  in  evidence  for 
both  parties.^^ 

1  Gresl.  Eq.  Evid.  p.  188,  189;  2  Dan.  mcnt  for  a  lease,  in  which  there  were 
Ch.  Pr.  1025,  1026  [*  3d  Amer.  Ed.  878-  mimerous  affidavits,  and  the  testimony 
879]  ;  Ellis  v.  Deane,  3  Moll.  63 ;  Conse-  very  conflicting,  an  application  was  made 
qua  V.  Fanning,  2  Johns.  Ch.  481  ;  Graves  to  have  an  oral  examination  of  the  depo- 
V.  Budgel,  1  Atk.  444.  And  see  E.  of  nents.  The  application  was  refused,  and 
Pomfret  v.  Ld.  Windsor,  2  Ves.  472.  it  was  said  by  Lord  Westbury  to  be  the 

2  Bloxton  V.  Drewitt,  Prec.  Ch.  64 ;  2  duty  of  the  judge  not  to  have  recourse  to 
Dan.  Ch.  Pr.  1027  [*  3d  Amer.  Ed.  878,  oral  examination  ofthe  witnesses  in  a  cause, 
879].  unless  he  feels  a  difficulty  in  determining 

3  Harris  v.  Ingledew,  3  P.  Wms.  91,  93 ;  the  weight  of  the  evidence,  or  is  in  some 
Niblett  V.  Daniel,  Bunb.  310;  Eade  v.  degree  of  uncertainty  or  difficulty  as  to  the 
Lingood,  I  Atk.  203.  side  to  which  his  judgment  ought  to  in- 

*  Barfield  v.  Kelley,  4  Russ.  355  ;  Mahur  cline.     Farrall  v.  Davenport,  5  L.  T.  N. 

V.  Ilobbs,  1  Y.  &  C.  585.  S.  436.     It  is  well  settled  both  in  England 

5  Lake  v.   Skinner,  1  Jac.  &  Walk.  9 ;  and   this   country   that  exhibits   may  be 

Gresl.  Eq.  Evid.  p.  189.  proved  by  parol,  —  and  such  parol  evidence 

8  Bloxton  V.  Drewitt,   supra  ;    Bank  v.  may  be  placed  upon  record  by  a  bill  of  ex- 

Farques,  Ambl.  145  ;  Clarke  v.  Jennings,  1  ceptions.     Gafney  v.  Reeves,  6  Ind.  71.] 

Anstr.  173  ;  Mahur  i-.  Hobbs,  supra.  ^  Davers  v.  Davers,  2  P.  Wms.  410;  2 

'  Turner  v.  Burleigh,  17  Ves.  354  ;  Con-  Stra.  764  ;  Hodson  v.  E.  of  Warrington, 

sequa  v.  Fanning,  2  Johns.  Ch.  481.  3  P.  Wms.  35  ;  2  Dan.  Ch.  Pr.  1030  [*  3d 

»  Orders  of  August  26,  1841,  Ord.  43;  Amer.  Ed.  881]. 

Law's  Pract.  U.  S.  Courts,  p.  708.     [*  In  w  j^nte,  Vol.  1,  §  563. 
a  suit  for  specific  performance  of  an  agree- 

VOL.  III.  18 


274  LAW    OF   EVIDENCE  IN   EQUITY.  [PART  VL 

4.    "WITNESSES. 

§  312.  It  has  already  been  seen,  that  in  many  of  the  United 
States,  trials  of  fact,  in  Chancery,  are  had  upon  oral  testimony 
delivered  in  open  Court,  in  the  same  manner  as  in  trials  at  Com- 
mon Law;  and  that  the  inclination  of  opinion  in  some  other 
States  is  in  favor  of  this  mode  of  proof.^  Nevertheless,  it  is  an 
ancient  and  general  rule  in  Chancery,  to  exclude  oral  testimony, 
and  to  receive  none  at  the  hearing  except  what  is  contained  in 
written  depositions.  And  as  this  rule  is  still  acted  upon  in  some 
of  the  States,  and  is  partially  and  in  a  modified  degree  still  recog- 
nized as  a  leading  rule  in  others,  it  will  be  necessary  to  consider 
it  in  this  place.  The  general  subject  naturally  disposes  itself  into 
two  branches ;  namely,  first,  the  competeyicy  of  the  witnesses ;  and, 
secondly,  the  manner  in  which  their  testimony  is  obtained. 

§  313.  And  FIRST,  as  to  the  competency  of  witnesses.  The  rules 
of  evidence,  generally  speaking,  are  the  same  in  Equity  as  at  Law, 
and  every  person  who  is  a  competent  witness  at  Law,  is  also  com- 
petent in  Equity.  What  has  been  said  in  the  preceding  volumes 
on  this  subject  will  therefore  not  be  here  repeated.  But  in  cer- 
tain cases,  Courts  of  Equity  go  further  in  this  respect  than  Courts 
of  Law;  by  examining  the  parties  themselves  as  witnesses;  a 
practice  wholly  unknown  to  the  ancient  Common  Law.^  "We  are 
therefore  here  to  consider  in  what  cases  persons,  inadmissible  as 
witnesses  at  Law,  are  admissible  in  Equity.  These  are  chiefly 
parties  to  the  record;  for  third  persons,  interested  in  the  subject 
or  event  of  the  suit,  or  otherwise  incompetent  to  testify  at  Law, 
are  for  the  same  reasons  excluded  here  also. 

§  314.  A  plaintiff  in  Equity  may  sometimes  examine  a  co-plain- 
tiff as  a  witness.  This  is  always  permitted,  when  the  adverse 
party  consents ;   the  ground  for  excluding  him  behig  his  liability 

1  Supra,  §§  259,  264,  265.     [In  Mnssa-  convenient  and  effectual  means  of  having 

chmettx,   it  is    provided    bv  statute   (Gen.  the   same  reported  by   the  Justice   before 

Stat.  ch.   1.31,  §  60),  that  '"'  in  proceedings  whom  the  hearing  is  had,  or  by  some  per- 

in   Kquitv,  the'  evidence  shall  be  taken  in  son  designated  by  him  for   that   jjurposc. 

the  same'manner  as  in  suits  at  Law,  unless  No  oral  evidence  shall  be  exhibited  to  the 

the  Court,  for  si)ecial    reasons,  otherwise  full  Court,  but  the  cause  shall  be  heard, 

directs;  but  this  shall  not  prevent  the  u.sc  on  appeal,   upon  the  same  evidence  as  on 

of  affidavits,  where  thev  have  been   here-  the  original  hearing  ;  but  the   full    Court 

tofore  allowed.     And  in  ch.  1 1.3,  §  21,  it  is  may  grant  leave  to  partie*  in  sjiecial  ca.ses 

further  provided,  that  "  the  testimony  of  of  accident  or  mistake,  to  exhibit  further 

witnesses  examined  orallv  before  a  single  evidence,    and    may    i)rovide.    In'    general 

Justice,  upon  anv  matter  pending  before  rules,  or  special  order,  fc.r  the  conditions 

him,  in  which  an'  appeal  is  taken,  shall  be  under,  and  modes  by  which,  such  evidence 

rei)ortcd  to  tiie  full  Court  ;  and  the  Court  shall  be  taken."] 

shall    provide   by  general   rules  for  some  ^  .4 n<e,  Vol.  1,  §§  329,  348-354. 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  275 

to  costs,  which  rendered  him  interested  in  the  event  of  the  suit. 
But  if  the  defendant  will  not  consent,  the  bill,  on  motion,  and  giv- 
ing security  for  costs,  may  be  amended  by  striking  out  the  name 
of  the  co-plaintiff  to  be  examined  as  a  witness,  and  inserting  his 
name  as  a  defendant.^  If  he  is  only  a  trustee  or  a  nominal  plain- 
tiff, he  is  a  competent  witness,  of  course,  on  the  mere  striking  out 
of  his  name ;  but  if  he  is  not,  and  he  still  has  an  interest  in  the 
event  of  the  suit,  it  must  be  released.^  If  his  interest  lies  in  a 
part  only  of  the  subject  of  the  suit,  as  to  which  separate  relief 
may  be  given,  he  may  be  examined  in  regard  to  the  other  part  of 
the  subject  without  a  release.^ 

§  315.  The  plaintiff  may  also  examine  one  of  several  defendants^ 
as  a  witness,  as  to  points  in  which  the  defendant  examined  has  no 
interest,  or  on  which  his  interest  is  balanced.  Leave  for  this  pur- 
pose is  granted,  of  course,  on  motion  and  affidavit  that  the  defend- 
ant is  a  material  witness,  and  is  not  interested  in  the  matters  to 
which  he  is  to  be  examined ;  subject  to  all  just  exceptions,  such 
as  the  competency  of  his  testimony,  or  the  like ;  all  which  are 
open  to  the  adverse  party  at  the  hearing.  The  affidavit  of  his 
freedom  from  interest  is  generally  understood  to  mean  only  that 
he  is  not  interested  on  the  side  of  the  party  applying.  But, 
though  he  be  not  thus  interested,  yet,  if  he  is  interested  adversely 
to  the  rights  of  his  co-defendants,  as,  for  example,  to  exonerate 
himself  by  charging  them,  he  cannot  be  examined.*  Wherever  a 
defendant  is  thus  examined  as  a  witness,  he  is  subject  to  a  cross- 
examination  by  the  other  defendants.^ 

§  316.  This  examination  of  a  defendant  by  the  plaintiff,  as  a 
witness,  ordinarily  operates  as  an  equitable  release  to  him,  so  far  as 
regards  the  matters  to  which  he  is  interrogated.  No  decree, 
therefore,  can  be  had  against  him,  except  as  to  matters  wholly  dis- 

1  1  Dan.  Ch.  Pr.  pp.  457,  1037   [*  3d  Eliis  v.  Deane,  3  Moll.  58;  Rojicrson  v. 

Amer.  Ed.  883,  884]  ;  Gresley,  Eq.  Evid.  Whittitij,'ton,  1  Swanst.  39  ;   Hardcastle  v. 

p.  339  ;  Motteux  v.  Mackreth,  1  Yes.  142  ;  Shafto,  2  Fowl.  100  ;  Meadhury  v.  Isdall, 

Witts  y.  Campbell,  12  Yes.  493  ;  Helms  u.  9   Mod.   438;   Robinson    v.   Sampson,    10 

Franciscns,  2  Bland.  544.     But  see  Benson  Shepl.  388  ;  Harvey  v.  Alexander,  1  Rand. 

V.  Chester,  1  Jac.  577.  219  ;  De  Wolf  v.  Johnson,  10  Wheat.  367  ; 

•^  Eckford    v.    De  Kay,   6   Paige,   565  ;  Miller  v.  McCan,  7  Paige,  457  ;   Williams 

Hanley  v.  Sprague,  7  Shepl.  433;  Hoffm.  v.  Beard,  3  Dana,  158  ;  Sfjroule  u.  Samuel, 

Master  in  Chan.  pp.  19,  20;  I  Hoffm.  Ch.  4  Seam.  135;  Tavlor  v.  Moore,  2  Rand. 

Pr.  487.  563. 

^  Lingan  v.  Henderson,  1  Bland.  268.  ^  Benson    v.   Le    Roy,    1    Paige,   122  ; 

*  1  Hoffm.  Ch.  Pr.  485  ;  2  Dan.  Ch.  Pr.  Hoffm.  Master  in  Chan.  pp.  20,  21  ;  Rob- 

1038,  1039  [*  3d  Amer.  Ed.  883]  ;  Man  v.  inson    v.    Sampson,    supra  ;    Hayward    v. 

Ward,  2  Atk.  229;  Hurd  v.  Partington,  Carroll,  4  H.  .&  J.  518  ;  Tallnia<lge  v.  Tall- 

1  Young,  307  ;  Fletcher  v.  Glegg,  Id.  345 ;  madge,  2  Barb.  Ch.  R.  290. 


276  LAW   OF   EVroENCE   IN   EQUITY.  [tAUT  VI 

tinct  from  those  to  which  he  was  examined.^  The  reasons  of  this 
rule  are,  that  it  is  inconsistent  to  allow  the  plaintiff  to  call  on  the 
defendant  to  assist  him  with  evidence  in  his  cause,  and  at  the 
same  time  to  act  against  him,  in  respect  to  the  same  matters ;  and 
also,  that  by  so  doing,  the  other  parties  may  be  wronged.^  If  the 
defendant,  who  is  examined  as  a  witness,  is  the  party  primarily 
liable  to  the  plaintiff,  the  other  defendant  being  only  secondarily 
liable,  the  plaintiff  cannot  have  a  decree  against  either,  upon  that 
part  of  the  case  to  which  the  examination  was  directed,^  But  the 
general  rule  we  are  considering  does  not  apply  to  the  case  of  a 
mere  formal  defendant,  such  as  an  executor  or  a  trustee,  against 
whom  no  personal  decree  is  sought,  and  who  has  no  personal  in- 
terest in  the  subject  as  to  which  he  is  examined ;  nor  to  the  case 
of  a  defendant  who,  by  his  answer,  has  admitted  his  own  absolute 
liability ;  or  who  has  permitted  the  bill  to  be  taken  pro  coT^fesso 
against  him.* 

§  317.  In  some  cases,  as  we  have  heretofore  seen,^  a  defendant 
may  examine  the  plaintiff  as  a  witness.  Leave  for  this  purpose 
may  be  obtained,  wherever  the  plaintiff  is  but  a  nominal  party, 
having  no  beneficial  interest  in  the  property  in  dispute ;  and  the 
real  party  in  interest  will,  in  such  case,  be  enjoined  from  proceed- 
ing at  law.6  A  co-plaintiff  may  generally  be  examined  as  a  wit- 
ness for  the  defendant,  by  consent;^  but  leave  will  not  be  granted 
for  one  defendant  to  examine  a  co-plaintiff  as  a  witness  against  an- 
other defendant,  for  the  purpose  of  sustaining  the  bill  against  him.^ 

1  Wevmonth    v.   Boyer,    1    Ves.    417;  Deane,  3  Moll.  .53;  Thompson  v.  Harri- 

Lewis  !•'.  Owen,  1  Ircd.'Eq.  93;  Palmer  v.  son,  supra;  Murray  v.  Shadwell,  2  V.  & 

Van  Doren,  2  Edw.  Ch.  192;  Bradley  v.  B.  403.     [A  trustee  may,  in  general,  be  a 

Root,  .5  Taige,  633  ;  Lingan  v.  Henderson,  witness.     Waterto\vn  v.  Cowen,  4  Paige, 

1  Bland.  268.     This  rule  is  now  abrogated,  510;   Neyille  v.  Demeritt,   1    Green,   Ch. 

and  a  decree  may  be  had,  by  yirtue  of  the  321;    Drum    v.    Simpson,    6    Binn.    481; 

statute  of  6  &  7  Vict.  c.  85.     See  2  Dan.  Keim  v.  Taylor,  11  Pcnn.  St.  R.  163.    But 

Ch  Pr.  1042.     [*  See  3d  Amer.  Ed.  884  for  if  a  trustee  is  entitled  to  commissions,  he  is 

modifications  of  the  statute  6  and  7  Vict,  interested ;  and  such  interest  must  be  re- 

c.  85  by  Sts.  14  and  15  Vict.  c.  9,  and  16  leased,  before  he  can  be  a  witness  in  those 

and  17  "Vict.  c.  83.]  jurisdictions  where  interest  renders  a  wit- 

-  Ni-htingalc  v.  Dodd,  Anibl.  583.   And  ness  incompetent,  and  in  those  causes  where 

see  Fulton  Bank  v.  Sharon  Canal  Co.,  4  his  interest  may  be  affected.     Anderson  v. 

Paige,   127;    Thomas  v.  Graham,  Walk.  Neff,  11   Serg.  &  R.  208;  King  v.  Cloud, 

Ch.  117  7  Penn.  St.  R.  467.] 

3  Bradley  v.  Root,  5  Paige,  6,33.     And  *  Ante,    Vol.  1,  §  361. 

see  Thompson  i-.  Harrison,  I  Cox,  C.  C.  ^  Hougham  v.  Sandys,  2  Sim.  &  Stu. 

344  ;  Meadbury  v.  Isdall,  9  Mod.  438 ;  Palm-  223  ;  Norton  v.  Woods,  5  Paige,  249.    And 

cr  V.  Van  Doren  2,  Edw.  Ch.  192;  Night-  sec  Fcreday  v.  Wightwick,  4  Russ.  114; 

ingalc  r.  Dodd,  supra;  Lewis  v.  Owen,  1  Armiter  v.  Swanton,  Ambl.  393. 

Ired.  Eq.  R.  290.  "   Walker   v.   Wingfield,   15    Vcs.   178; 

*   Bradley    v.   Root,  supra.      And    see  Whatcly  v.  Smith,  Dick.  650. 

Goold  V.  O'Keefe,  1  Beat.  356 ;   Ellis  v.  ^  Eckford  r.  De  Kay,  6  Paige,  565      In 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  277 

§  318.  Co-defendants  may  also  he  ivitnesses  for  each  other.  The 
rule  in  Courts  of  Equity  on  this  subject  is  founded  on  the  same 
principle  with  the  rule  at  Law,  which  has  formerly  been  stated,^ 
namely,  that  it  ought  not  to  be  in  the  plaintiff's  power  to  deprive 
the  real  defendant  of  his  witnesses  by  making  them  defendants. 
And  this  principle  applies,  and  therefore  the  testimony  of  a  co- 
defendant  may  be  had,  in  all  cases  where  he  is  either  a  merely 
nominal  defendant,  or  has  no  beneficial  interest  in  the  matter  to 
which  he  is  to  be  examined ;  or  his  interest  or  liability  is  extin- 
guished by  release  ;  or  is  balanced ;  or  where  the  plaintiff  cannot 
adduce  some  material  evidence  against  him ;  or  where  no  decree 
is  sought,  or  none  can  be  properly  had  against  him.^  If  the  wit- 
ness, who  was  competent  at  the  time  of  his  examination,  is  after- 
wards made  a  defendant,  his  deposition  may  still  be  read.^  And 
it  makes  no  difference  that  relief  is  prayed  against  the  defendant 
proposed  to  be  examined  as  a  witness,  if  the  prayer  be  founded 
upon  matters  other  than  that  to  which  he  is  to  be  interrogated, 
or,  in  other  words,  if  his  interest  be  not  identical  with  that  of  the 
party  who  examines  him.*  Regularly,  a  defendant  cannot  exam- 
ine his  co-defendant,  without  an  order  for  that  purpose ;  which 
will  be  granted,  of  course,  before  the  decree,  saving  all  just  ex 

the   States  of  New   York,  Iowa,  Indiana,  Neilson  v.  McDonald,  6  Johns.  Ch.  201 ; 

Georgia,  Louisiana,  Texas,' ixn&  California,  2  Cowen,  139;   Cotton  v.  Luttrell,  1  Atk. 

where  there  is  no  distinction  in  the  forms  4.51  ;  Man  v.  Ward,  2  Atk.  228;  Souver- 

of  proceeding,  between  cases  at  Law  and  bye  v.  Arden,  1  Johns.  Ch.  240 ;  Kirk  v. 

in  Equity,  provision  is  made  by  statute,  Hodi^son,    2   Johns.    Ch.    550 ;    Beebe   v, 

for   the   examination  of  parties   by  each  Bank  N.  York,  1  Johns.  577  ;  Reiinsdyk  v. 

other  as  witnesses.     In  3//ss/ss//^/«',  and  in  Kane,  1   Gall.  620;  Clark  v.  Van  Reims- 

Arkansas,  in  cases  in  Equity,  the  defendant  dyck,  9  Cranch,  153  ;  Butler  v.  Elliott,  15 

may  insert  in  his  answer  any  new  matter  Conn.  187  ;  Hawkins  v.  Hawkins,  2  Car. 

of  deft-nce,  and  call  on  the  plaintiff,  or  any  Law  R.  627  ;  Douglass  v.  Holbert,  7  J.  J. 

of  his  co-defendants,  as  the  case  may  be,  to  Marsh.  1;  Hodges  v.  Mullikin,  1  Bland, 

answer  it  on  oath.     Mississippi,  Stat.  Feb.  503  ;  Regan  v.  Echols,  5  Geo.  R.  71. 
15,    1838,  §  1  ;  Aid.  &  Van  Hoes,   Dig.         [A   defendant   may   also   be  a  witness 

App.  ch.  7.     Arkansas,  Rev.   Stat.  1837,  against  a  co-defendant,  where   he  is   ne- 

ch.  23,  §  34.     In  several  other  States  it  is  cessarily  a  party,  and  will  not  be  alFected 

provided,  that  the  defendant,  after  he  has  by  a  decree  against  his  co-defendant,  and 

answered  the  bill,  may  exhibit  interroga-  where  his  testimony  is  not  in  favor  of  his 

tories  to  the  plaintiff,  which  he  is  compelled  own  interest.     Farley  v.  Bryant,  32  Maine, 

to   answer.      See  Ohio,   Rev.    Stat.   1841,  474;  Neilson  v.  McDonald,  6  Johns.  Ch. 

ch.  87,  §  26;  Missouri,  Rev.  Stat.  1845,  ch.  201  ;    Whipple  v.   Van   Rensselaer,  3   lb. 

137,  art.  2,  §§  14,  15;   New  Jersey,  Rev.  612;  Miller  v.  McCan,  7  Paige,  457;  Wil- 

Stat.  1846,  tit.  33,  ch.  1,  §40;    Wisconsin,  liams  v.  Bean,  3  Dana,  58.] 
Rev.   Stat.    1849,   ch.  84,  §  30;  Alabama,         ^  Cope  v.  Parry,   1  Jac.  &  Walk.  583; 

Code  of  1852,  §  2914.  Brown  p.  Greenly,  2  Dick.  504;  Bradley 

1  Ante,  Vol.  1,  §  358.  •  v.  Root,  5  Paige/632. 

2  Piddock  V.  Brown,  3  P.  Wms.  288  ;  *  Ashton  v.  Parker,  9  Jur.,574;  14  Sim. 
Murray  v.  Shadwell,  2  V.  &  B.  401  ;  632,  S.  C.  And  see  Daniell  v.  Daniell, 
Eranklyn  v.  Colquhoun,  16  Ves.  218;  13  Jur.  164;  Holman  y.  Bank  of  Norfolk, 
Dixon  V.   Parker,  2  Ves.  219.     And  see  12  Ala.  369. 

Whipple  V.  Lansing,  3  Johns.  Ch.  612; 


278  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

ceptions,  upon  suggestion  that  he  is  not  interested,  leaving  the 
question  of  his  admissibility  to  be  determined  at  the  hearing ;  but 
after  a  decree,  it  is  not  a  motion  of  course,  but  is  granted  only  on 
special  circumstances,  and  upon  notice  to  the  plaintiff.^  [*  The 
evidence  taken  by  any  party  to  a  cause  may  be  used  by  any  of 
the  other  parties.^] 

§  319.  Secondly,  as  to  the  mode  of  taking  testimony.  It  has 
already  been  seen,  that  in  Chancery,  the  regular  course  is  to  i«- 
ceive  no  testimony  orally,  except  in  the  mere  formal  proof  of  ex- 
hibits ;  and  that  in  several  of  the  State  Courts  this  rule  has  been 
abolished,  and  evidence  is  received  orally,  in  Equity  cases,  in  the 
same  manner  as  at  Common  Law;^  while  in  others  the  old  rule 
has  been  variously  modified.  In  view  of  this  state  of  things,  Con- 
gress, at  an  early  period,  expressly  empowered  the  Courts  of  the 
United  States  to  regulate  the  practice  therein,  as  may  be  fit  and 
necessary  for  the  advancement  of  justice ;  and  particularly,  in 
their  discretion,  and  at  the  request  of  either  party,  to  order  the 
testimony  of  witnesses  in  cases  in  Equity  to  be  taken  by  deposi- 
tions, in  the  manner  prescribed  by  law  for  the  highest  Courts  of 
Equity  in  the  States  where  the  Courts  of  the  United  States  may 
be  holden ;  except  in  those  States  in  which  testimony  in  Chancery 
is  not  taken  by  deposition.*  And  more  recently,  the  Supreme 
Court  of  the  United  States  has  been  empowered  to  prescribe,  reg- 
ulate, and  alter  the  forms  of  process  in  the  Circuit  and  District 
Courts,  the  forms  of  pleading  in  suits  at  Common  Law,  in  Admi- 

1  2   Dan.    Ch.   Pr.    1044;  Williams   v.  just   exceptions."     Whether,   under   this 

Maitland,    1  Ircd.  Eq.  93 ;  Nevill  v.  De-  statute,    co-defendants    were    entitled,    of 

meritt,  1  Green,  Ch.  321  ;  Bell  v.  Jasper,  2  riyhl,  to  examine  each  other  as  witnesses, 

Ired    Eq.  597  ;  Hopkinton  v.  Hopkinton,  in   support  of  a  common  defence  a<;amst 

14   N.    Hamp.   31.5;  Paris  v.   Hu<,rhcs,   1  the  plaintiff,  is  a  point  upon  whuh  opposite 

Keen     1.     [The  omission   to  procure  the  opinions  have  been   held.     See    Wood   v. 

previous    order   of  the  court   for   the  ex-  RovvcHlfe,  11  Jur.  707,  per  Wi-rani,  V.  C, 

amination  of  the  defendant  as  a  witness,  is  that  they  are.     Monday  v.  (iiiyer,  Id.  861, 

a  mere  irregularity,  and  when  it  is  appar-  1   Dc  G.  &  S.  182,  per  Bruce,  V.  (...  that 

cut  that  no  substantial  injustice  has  been  tiiey  arc  not.     [*  Where  tlie  oath  to  tlie 

done  to  the  other  ])artv,  an  objection  on  answer  of  a  defendant  who  docs  not  ap- 

this  srouud  ou^rht  not  to  prevail.     Tolsou  pear  to  have   any  interest  m  the  suit,   is 

T    Tolson,   4   Md.   (.'ii.   K.   119.]     [*  Tlie  waived,  it  seems  that  Ins  deposition  may 

practice  in  Ohio  is  to  take  the  deposition  be  taken,  or  he  may  be  rc(iiiired  to  testify 

of  a   co-defendant    in    Chancery    without  orally.     Butterworth  u.  Brown,  26  111.  156. 

leave  :  subject  to  the  ri^lit  of  the  adverse  See  also  Wilson  v.  Allen,.  1  Jones  Eq.  (N. 

party  to  except  to  it.     Choteau  v.  Thomp-  C.)  24.]         .        ,,          ^^  „         ^^„  , 

son,'3  Ohio  (N.  S.),  424. |     By  the  statute  '^  [*  bturfjis  v.  Morse,  26  Beav.  562.] 

6  &'7  Vict.  c.  8.T,  rcmoviii;,^  iVuin  witii'  sses  ^  Supm,  §§  251,  308,  309,  312. 

the  objection   of  iiieoiiipetency  by  rea.son  *  U.  S.   Stat.  1802,  ch.  .31,  §  25  [2  btat. 

of  interest  or  infamy,  defendants  in  Chan-  at    Large,   166);    Stat.   1793,  ch.   22,  §  7 

cerv  may  be  examined  as  witnesses  for  the  [1  Stat,  at  Large,  335]. 
plaintiff^  and  also  for  caih  other,  '•  saving 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  279 

ralty  and  in  Equity,  and  of  taking  testimony  and  of  entering  de- 
crees, and,  generally,  to  regulate  the  whole  practice  of  the  Courts.^ 
Pursuant  to  this  authority,  Rules  of  Practice  have  been  made,  by 
which,  after  the  cause  is  at  issue,  commissions  may  be  taken  out 
either  in  vacation  or  term-time,  to  take  testimony  upon  interroga- 
tories filed  in  the  Clerk's  office,  ten  days'  notice  thereof  being 
given  to  the  adverse  party  to  file  cross-interrogatories,  on  failure 
of  which  the  commission  may  be  issued  ex  parte;  the  commis- 
sioner to  be  appointed  by  the  Court  or  by  a  Judge  thereof.  But 
if  the  parties  agree,  the  testimony  may  be  taken  upon  oral  inter- 
rogatories, propounded  by  the  parties  at  the  time  of  taking  the 
depositions.^  Testimony  may  also  be  taken  in  the  cause,  after  it 
is  at  issue,  by  deposition,  according  to  the  acts  of  Congress,  the 
substance  of  which  has  been  stated  in  a  preceding  volume.^  But 
in  such  case,  if  no  notice  has  been  given  to  the  adverse  party,  of 
the  time  and  place  of  taking  the  deposition,  he  may  be  permitted 
to  cross-examine  the  witness,  either  under  a  commission,  or  by  a 
new  deposition,  in  the  discretion  of  the  Court  or  Judge.* 

§  320.  In  the  construction  of  these  rules,  it  has  been  held,  that 
in  cases  of  disagreement  between  the  parties  as  to  the  form  of  in- 
terrogatories and  cross-interrogatories,  it  should  be  referred  to  a 
master  to  settle  the  proper  form ;  subject  to  an  appeal  from  his 
decision,  which  will  be  reviewed  by  the  Court,  at  the  hearing, 
upon  a  view  of  the  whole  testimony  ;  and  that  when  exceptions 

1  U.  S.  Stat.  1842,  ch.  188,  §  6,  Vol.  5,  which  may  be  holden  in  those  States  in 

p.  518.     In  the  Judiciary  Act  of  1789,  ch.  which  testimony  in  Chancery  is  not  taken 

20,  §  30,  1   Stat,  at  Large,  88,  it  was  en-  by  deposition."     Conn  v.  Penn,  5  Wheat 

acted,   that  "  the  mode  of  proof,   by  oral  424.     Provision  is  also  made,  by  statute, 

testimony  and  examination  of  witnesses  in  for  reducing  oral  testimony  to  writing,  to 

open  Court,  shall  be  the  same  in  all  Courts  be  used  in  the  Supreme  Court  on  appeal, 

of  the  United  States,  as  well  in  the  trial  no   other   testimony  being  in  such  cases 

of  causes  in  Equity  and  of  Admiralty  and  allowed.     Stat.  U.  S.  Sept.  24,  1789,  ch. 

Maritime   Jurisdiction,    as    of    actions    at  20,  §  19,  1  Stat,  at  Large,  83  ;  Stat.  U.  S. 

t'ommon  Law."     By  the  subsequent  stat-  March  3,  1803,  ch.  93,  §  2,  2  Stat,  at  Large, 

ute  of  April  29,  1802,  ch.  291,  §  25,  2  Stat.  244  ;  The  Boston,  1   Sumner,  332.     [And 

at  Large,  16b,  ..hc  imperative  character  of  the  parol  testimony  which  was  used  in  the 

this  provision  was  removed,  so  far  as  re-  Court  below  ought  to  appear  upon  the  rec- 

gards  suits  in   Equity,  by  leaving  it  "  in  ord.     Conn  v.  Penn,  5  \Vheat.  424.] 

the  discretion  of  the  Court,  upon  the  re-  '■'  Rules   for  Circuit  Courts  in   Equity, 

quest  of  either  party,  to  order  the  testi-  Reg.    67.      [*  And  where   a  party    with 

mony  of  the  witnesses  therein  to  be  taken  knowledge  of  such   an  oral   examination 

in  conformity  to  the  regulations  prescribed  acquiesces  in  it,  he  waives  his  right  to  re- 

by  law  for  the  Courts  of  the  highest  origi-  quire  written  interrogatories.      Van  Hook 

nal  jurisdiction  in  Equity,   in  cases  of  a  v.  Pendleton,  2  Blatch.  Cir.  Ct.  85.] 

similar  nature,  in  that  State  in  which  the  ^  jl,i(e,  Vol.  1,  §§  322-324. 

Court  of  the  United  States  may  be  holden  ;  *  Rules  for  Circuit  Courts  in  Equity, 

provided,  however,  that  nothing  herein  con-  Reg.  68. 
tained  shall  extend  to  the  Circuit  Courts 


280  LAW   OF   EVIDENCE  IN  EQUITY.  [PART  VI. 

are  intended  to  be  taken  to  such  interrogatories  and  cross-inter- 
rogatories, they  should  be  propounded  as  objections,  before  the 
commission  issues,  or  they  will  be  deemed  to  be  waived. ^  All  the 
interrogatories  must  be  substantially  answered.  If  the  cross-in- 
terrogatories which  were  filed  are  not  put  to  the  witness,  the  depo- 
sition, ordinarily,  cannot  be  read  ;  but  if  the  other  party  has  un- 
reasonably neglected  to  file  any,  it  is  at  his  own  peril,  and  the 
deposition  may,  in  the  discretion  of  the  Court,  be  admitted.^  If 
the  commission  is  joint,  it  must  be  executed  by  all  the  commis- 
sioners ;3  if  joint  and  several,  the  commissioners  are  competent  to 
take  the  depositions  of  each  other;*  but  in  either  case,  if  a  per- 
son not  named  in  the  commission  appears  to  have  assisted  in 
taking  the  examination,  it  is  fatal  to  the  admissibility  of  the  depo- 
sition.'^ 

§  321,  By  another  Rule,^  the  time  ordinarily  allowed  for  the 
taking  of  testimony  is  three  months,  after  the  cause  is  at  issue ; 
but  it  may  be  enlarged,  for  special  cause  shown.  And  immedi- 
ately after  the  commissions  and  depositions  are  returned  to  the 
Clerk's  office,  publication  may  be  ordered  by  a  Judge  of  the  Court, 
or  it  may  be  enlarged  at  his  discretion.  But  publication  may  at 
any  time  pass,  in  the  Clerk's  office,  by  the  written  consent  of  the 
parties,  duly  entered  in  the  order-book,  or  indorsed  on  the  deposi- 
tions or  testimony. 

§  322.  It  is  also  ordered,  by  another  Rule  of  the  same  Court,'^ 
that  after  the  filhig  of  the  bill,  and  before  answer,  upon  affidavit 
that  any  of  the  plaintiff's  witnesses  are  aged  or  infirm,  or  going 
out  of  the  country,  or  that  any  of  them  is  a  single  witness  to  a 
material  fact,  a  commission  may  issue,  as  of  course,  to  a  commis- 
sioner appointed  by  a  Judge  of  the  Court,  to  take  their  examina- 
tion de  bene  esse,  upon  due  notice  to  the  adverse  party.     These  are 

1  Crocker  v.  Franklin  Co.,  1  Story,  R.  ^  Willings  v.  Conscqua,  1  Pet.  C.  C  R. 

169 ;    United    States   v.    Hair   Pencils,    1  301. 

Paine,  400.     And  see  Barker  i'.  Birch,  7  ®  Rules  for  Circuit  Courts   in  Equity, 

Eng.  Law  &  Eq.  Rep.  46.  Reg.  69.     [Where  by  a  rule  in  chancery, 

^  Ketland  ;;.  Bissett,  1  Wash.  C.  C.  R.  the  time  allowed  for  the  taking  of  testi- 

144;  Giliiiiis  v.  Conscqua,  3  Wash.  184;  mony  was  limited  to  four  months,  but  a 

Bell  V.  Davidson,  Id.  328;   Gass  v.  Stin-  subsequent  statute  provided  that  "in  all 

son,  3  Sumn.  98.     For  the  cases  in  which  proceedings  in  equity  the  evidence  shall  be 

a  deposition  will  be  admitted  in  Equity,  taken  in  the  same  manner  as  in  suitd  at 

notwithstanding  the  want  of  a  cross-ex-  law,"  it  was  held,  that  the  statute  neces- 

amination,  see  antp,   Vol.    1,  §  554.     See  sarily  su])cr.scdcs  the  rules  of  Court  as  to 

also,  in/ra,  ch.  3,  §  1.  the  'taking    and    liling   of   depositions    iu 

8  Armstrong  v.  Brown,  1  Wash.  C.  C.  chancery.      Pingree   v.    Coffin,   12    Cush. 

R.  43.  600.1 

*  Lonsdale  v.  Brown,  3  Wash.  404.  '  Idem.  Reg.  70. 


PART  \a.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  281 

the  principal  rules,  adopted  in  the  national  tribunals,  which  affect 
the  law  of  evidence  in  cases  in  Equity ;  except  such  as  may  here- 
after be  mentioned.  But  it  is  further  ordered,  that  in  all  cases 
where  the  rules  prescribed  do  not  apply,  "  the  practice  of  the  Cir- 
cuit Court  shall  be  regulated  by  the  [then]  present  practice  of  the 
High  Court  of  Chancery  of  England,  so  far  as  the  same  may  rea- 
sonably be  applied  consistently  with  the  local  circumstances  and 
local  convenience  of  the  District  where  the  Court  is  held ;  not  as 
positive  rules,  but  as  furnishing  just  analogies  to  regulate  the 
practice."^  And  it  is  to  be  noted,  that  it  is  the  practice  of  the 
Court  of  Chancery,  and  not  that  of  the  Exchequer,  which  thus 
forms  the  basis  of  the  Equity  practice  of  the  Courts  of  the  United 
States.^  The  same  may  be  said  of  the  course  of  practice  in 
Equity  in  all  the  State  Courts,  so  far  as  it  has  not  been  changed 
by  express  orders  or  immemorial  usage,  nor  by  statutes. 

§  323.  When  depositions  are  taken  under  a  commission,  or  by 
an  examiner,  the  course  is  for  the  party  to  file  in  the  Clerk's  office 
the  original  interrogatories  to  be  propounded  to  the  witnesses  he 
would  examine ;  giving  opportunity  to  the  adverse  party,  by  rea- 
sonable notice  prescribed  by  the  rules,  to  file  his  cross-interrogato- 
ries. These  are  to  be  signed  by  counsel,  as  a  guaranty  of  their 
propriety  and  fitness  to  be  put ;  after  which  the  commission  issues. 
The  attendance  of  the  witness  before  the  commissioner  or  exam- 
iner is  obtained  by  means  of  a  subpoena;  disobedience  to  which 
may  be  punished  by  attachment,  as  a  contempt  of  Court.^  The 
course  of  examination  upon  interrogatories,  and  their  character 
as  proper  to  be  put,  has  been  sufficiently  indicated  in  a  preceding 
volume,  when  treating  of  the  examination  of  witnesses.^  But  it 
may  here  be  repeated,  that  the  witness  can  be  examined  only  to 
matters  alleged  in  the  bill  or  answer,  or  relevant  to  the  issue. ^ 

1  Idem.  Reg.  90.  amination  of  witnesses  to  the  conversations 

2  Smith  V.  Burnham,  2  Sumn.  612.  In  of  the  defendant  are  admissible  to  prove 
some  of  the  United  States,  the  practice  in  the  fact  unless  such  conversations  are  ex- 
Equity,  in  cases  not  otherwise  regulated,  pressly  charged  in  the  bill,  as  evidence  of 
is  expressly  ordered  to  be  in  conformity  such  fact,  is  a  question  upon  which  there 
to  the  Rules  of  Practice  made  by  the  Su-  is  some  diversity  of  opinion.  The  rule  of 
preme  Court  of  the  United  States.  See  practice  in  England  seems  to  exclude  the 
Fennsj/lvania,  Dunlop's  Dig.  ch.  52.5,  §  13,  evidence  in  such  eases.  2  Dan.  Ch.  Pr. 
p.  834  ;  [West  v.  Paige,  1  Stockt.  (N.  J.)  995,  996.  But  the  authorities  cited  in  sup- 
203  ;  Burrall  v.  Eames,  5  Wis.  260.]  port  of  the  rule  were  reviewed  with  criti- 

3  Rules  for  Circuit  Courts  in  Equity,  cal  acumen,  and  the  principle  clearly  ex.- 
Reg.  78.  pounded,  in  Smith  v.  Buruham,  2  Sumn. 

*  Ante,  Vol.  1,  §§  431-469.  612,  by  Story,  J.,  who  held   that   the  evi- 

5  The  question  whether,  where  a  fact  is     dence  was  admissible.      In  that  case  it  was 

charged  and  put  in  issue  in  a  bill,  the  ex-     stated,  in  general  terms,  in  the  bill,  that 


282 


LAW   OF   EVIDENCE  IN   EQUITY. 


[part  vl 


Though  hiterrogatories  may  be  referred  for  scandal,  it  is  doubtful 
whether  they  can  be  referred  for  mere  impertinence;^   but  if  the 

tions  between  the  plaintiff  and  defendant, 
out  of  which  certain  rights  of  the  plain- 
tiff have  sprung,  which  he  seeks  to  enforce 
by  the  bill.     The  confessions  and  admis- 
sions are  not  charjicd  in  the  bill ;  but  the 
partnership  is.     Now,  partnership  itself  is 
not,  in  all  cases,  a  mere  matter  of  fact,  but 
is  often  a  compoxmd  of  law  and  fact.    And 
,1  cannot  see  a  single  ground,  upon  which 
the  evidence  of  confessions  and  admissions 
ought  to  be  rejected  in  the  case  of  a  charge 
of  fraud,  which  does  not  equally  apply  to 
the  charge  of  partnership.     In  each  case 
the  evidence  is,  or  may  be,  equally  a  sur- 
prise upon  the  party ;  and  in  each  of  them 
he  is  equally  prevented  from   giving,  by 
his  answer,  such  denials  and  explanations, 
as  may  materially  affect  the  whole  merits 
of  the  cause.     It  seems  to  me,  then,  that 
the  doctrine,  if  it  exists  at  all,  must  equal- 
ly a])ply  to  all  eases,  where  the  fact  charged 
in  respect  to  which  the  confessions,  con- 
versations, or  admissions  are   offered,  as 
proofs,  constitutes  the  gist  of  the  matter  of 
the  bill.     And  yet  I  do  not  understand 
that  such  a  doctrine,  so  universal,  is  any- 
where established,  unless  it  is  so  in  Ireland 
by  Lord   Chancellor   Hart,   who   has   dis- 
cussed  the  subject  in  a  variety  of  cases, 
and  seems  to  assert  it  in  broad  terms.    He 
has  expressly  refused  to  apply  it  to  cases, 
where  written  papers,  letters,  or  documents, 
are  relied  on  as  j)roofs  of  general   fticts 
charged  in  the  bill ;  although  such  papers, 
letters,  and  documents  are  not  charged  as 
proofs  in  the  bill  (Fitzgerald  v.  O'Flaher- 
ty,    1    Molloy,    R.   350)  ;    unless,    indeed, 
those  papers,  &c.,  are  relied  on  as  confes- 
sions of  the  party,  which  he  treats  as  an 
exception  to  tlie  general  rule  of  evidence. 
'  The  general   rule  '   (said  he  on  one  occa- 
sion) '  is,  that  all  evidence,  intended  to  be 
relied  on  at  the  hearing,  should  be  founded 
on  some  allegation,  distinctly  put  on  rec- 
ord, of  fact,  which  it  is  calculated    to  sup- 
port.'    '  It   is  a  very  old  princij)le   to   be 
found  very  clearly  stated  in  Vernon  (Wha- 
lev  V.  Norton,  1  Vern.  R.  48.3),  hut  I  must 
be  greatly  misread,  if  the  evidence,  and  not 
onlv  the  "fact  to  be  i)roved  by  the  evidence, 
must  he  ])ut  in  issue,  to  entitle  the  evidence 
to  be  read'      He  rei)eated  the  same  remark 
with    the    same    exce|)tiun    in    Blacker   v. 
Phrpoe    (1    Molloy.    R.    .357,   .358).     The 
doctrine  of  Lord   Chancellor   Hart,  to   be 
(Irduced  from  all  the  cases  decided  by  him, 
seems  to   be  this  :    that,  wherever  confes- 
sions, conversations,  or  admissions  of  the 


the  defendant,  at  divers  times,  had  spoken 
of  the  title  in  controversy  as  one  belong- 
ing  to   the   partnership    claimed   by    the 
plaintiff;   but  the  particulars  of  the  time, 
place,  and  circumstances  of  the  admissions 
were  not  stated  in  the  bill.     The  interrog- 
atories, filed  by  the  jjlaintiff  to  elicit  these 
conversations  were,  on  the  defendant's  pe- 
tition, referred  for  impertinence  ;  and  the 
rejjort  of  the  master,  which  allowed  them, 
being  excepted   to,  the  learned  Judge,  in 
disposing  of  the  exception,  vindicated  his 
dissent  from  the  English  rule,  in  an  argu- 
ment   best    stated    in    his   own    language. 
"  The  case  of  Hall  v.  Maltbv,"  he  observed 
"(6    Price,    K.    240,    258,  "259),  is  relied 
on  in  support  of  the  exception ;    and   cer- 
tainly, if  the  language  of  that  decision  is 
to  be  taken  in  its  full  latitude,  it  is  direct- 
ly in   point.     In   that  case  there   was   a 
charge  of  a  fraudulent  withdrawal   of   a 
tithable  sheep  trom  tithes  ;  and  Chief  Bar- 
on  Richards,  at  the  hearing,  rejected  the 
evidence  of  conversations  of  the  defendant, 
establishing  the  fact ;  because,  though  the 
fraudulent  withdrawal  was  charged  in  the 
bill,  the  conversations  were  not."     Iil.  p. 
614.     "  It  is  true  that,  in   this  case,  there 
was  a  charge  of  fraud  ;  and  the  Chief  Baron 
seems  to  rely  on  that  as  important  to  his 
decision.     And  Lord  Chancellor  Hart,  in 
Mullonland    v.    Hendrick    (1    Mollov,    R. 
■359 ;  S.  C.  Beatt.  R.  277),  in  affirming  the 
same  doctrine,  seems  to  have  placed  some 
reliance  cm   the  same  fact,  of  its  being  a 
charge  of  fraud,  considering  fraud   as   an 
inference  of  law  from  facts,  and  not  a  mere 
fact.     In   other  cases,  however,   he   does 
not  seem  to  rely  on  any  such  distinction. 
Indeed,  it  is  very  difficult  to  understand  the 
ground  of  such  a  distinction.     The  facts  to 
be  established    by    such    confessions,   and 
conversations,  and   admissions,  are  not  so 
much  fraud  in   the  abstract,  as  evidence 
conducing  to  establish  it.    If,  upon  a  charge 
of  fraud  in  a  bill,  stating  that  certain  acts 
done  were  fraudulently  done,  evidence  of 
confessions,  admittiTig  the  acts  and  the  in- 
tent, cannot   be  given   in  evidence,  unless 
those  confessions  are  also  charged   in  the 
bill,  as  evidence  of  the  fraud;  it  seems  to 
me,  that   the  ])riiu'iple  of  the  rejection  of 
the   evidence    must    apply   e(|ually    to   all 
other  cases  of  confessions  to  establish  facts, 
which  are  to  prove  any  other  charge  in  a 
bill.     Take  the  ])resent  case.     The  main 
object  of  the  bill  and  interrogatories  is,  to 
establish  a  partnership  in  certain  transac- 


1  Cox    V.    Worthington,   2   Atk. 
Pyncent,  3  Atk.  557. 


236;    White  j;.  Fussell,  19  Vcs.  113;  Pyncent  w. 


PART  VI  ]      SOURCES,  MEANS,  AND   INSTRUMENTS    OF   EVIDENCE. 


283 


witness  would  object  to  an  interrogatory  for  this  latter  cause,  he 
must  do  it  by  demurrer,  before  he  answers.^     But  this  right  to  de- 


defendant,  either  oral  or  written,  are  relied 
on  in  proof  of  any  facts  charged  in  the  bill, 
they  are  inadmissible,  unless  such  confes- 
sions, conversations,  or  admissions  are 
charged  in  the  bill ;  because  they  operate 
as  a  surprise  upon  the  party,  and  he  is  de- 
prived of  any  opportunity  to  deny  or  ex- 
pliun  them  in  his  answer.  He  admits  the 
general  rule  to  be  the  other  way  ;  and  in- 
sists upon  tliis  as  an  exception  to  it.  The 
'.juestion,  tiicn,  really  is,  whether  the  ex- 
ception, either  iir  its  general  form,  as  as- 
serted by  Lord  Chancellor  Hart,  or  in  its 
qualilicd  Ibrra,  as  asserted  by  Lord  Chief 
Baron  Kicluirds,  has  a  real  foundation  in 
Equity  jurisprudence.  Both  of  these  learned 
Judges  rely  on  the  case  of  Evans  v.  Bick- 
nell  (6  Ves.  R.  174),  in  which  they  were 
counsel  on  opposite  sides,  to  support  that 
doctrine.  Lord  Chief  Baron  Kichards 
says,  that  it  was  so  decided  in  that  case. 
Lord  Chancellor  Hart  does  not  agree  to 
that ;  but  admits,  that  he  drew  the  bill  in 
that  case  with  a  full  knowledge  of  the  ex- 
ception. It  is  very  certain,  that  the  point 
was  not  decided  in  the  case  of  Evans  v. 
Bicknell,  if  we  are  to  trust  to  the  printed 
report  in  6  Ves.  R.  174.  And,  upon  the 
state  of  the  pleadings.  I  do  not  see  how  the 
point  could  have  arisen."  Id.  pp.  616- 
618.  "The  case  of  Evans  y.  Bicknell  (6 
Ves.  R.  176,  189,  192),  does  not  sustain 
the  doctrine  of  Lord  Chief  Baron  Rich- 
ards, or  of  Lord  Chancellor  Hart ;  and  I 
have  not  been  able  to  tind  a  single  decision 
in  the  P^nglish  Court  of  Chancery,  which 
does  sustain  it.  And  yet  if  the  doctrine 
had  been  well  established,  it  seems  to  mc 
almost  impossible  that  it  should  not  be 
found  clearly  stated  in  the  books,  as  it 
must  be  a  case  of  so  frequent  recurrence  in 
practice.  On  the  contrary,  it  seems  to  me, 
that  t!ie  case  of  Earle  v.  Pickin  (1  Russ. 
&  Mylne,  R.  547),  shows,  that  no  such 
rule  is  established  in  Chancery."  Id.  p. 
621.  "  If,  then,  in  the  absence  of  authori- 
ty in  favor  of  the  rule  we  look  to  principle, 
it  seems  to  me  impossible  that  it  can  be 
supported.  There  is  no  pretence  to  say, 
that  in  general  it  is  true,  that,  as  to  the 
facts  to  be  put  in  issue,  it  is  necessary,  not 
only  to  charge  these  facts  in  the  bill,  but 
also  to  state  in  the  bill  the  materials  of 
proof  and  tcstimonj^  by  means  of  which 
these  facts  are  to  be  supported.  Lord 
Chancellor  Hart  has  admitted  this  in  the 

1  Parkhurst  v.  Lowten,  2  Swanst.  194. 
And  see  Bowman  v.  Rodwell,  1  Madd. 
266  ;  Langlcy  v.  Fisher,  5  Beav  443.  The 
demurrer,  if  the  court  can  dispose  of  the 


fullest  manner,  saying  :  '  The  evidence  of 
fiicts,  whether  documentary  or  not,  need 
not  be  put  in  issue ;  evidence  of  con- 
fessions, whether  documentary  or  not, 
must.'  Why  admissions  or  conversations, 
as  materials  of  proof,  should  be  exceptions 
from  the  general  practice,  I  profess  myself 
wholly  unable  to  comprehend.  Other  pa- 
pers and  testimony  may  be  quite  as  much 
matters  of  surprise,  as  documents  or  testi- 
mony, as  conversations  or  admissions ; 
and  the  circumstance,  that  conversations 
or  admissions  are  more  easily  manufac- 
tured than  other  proofs,  furnishes  no 
ground  against  the  corn])etency  of  such 
evidence,  but  only  against  its  cogency  as 
satisfactory  proof. 

"  Two  grounds  are  relied  on  to  support 
the  exception.  The  first  is,  that  the  de- 
fendant may  not  be  taken  by  surprise,  and 
(as  it  has  been  said),  admitted  out  of  his 
estate  ;  but  may  have  an  opportunity  to 
cross-examine  the  witnesses.  The  second 
is,  that  the  defendant  may  have  an  oppor- 
tunity, in  his  answer  fully  to  deny,  or  to 
explain  the  supposed  admissions  or  con- 
versations. Now,  the  former  ground  is 
wholly  inapplicable  to  our  practice,  where 
the  interrogatories  and  cross-interrogato- 
ries "put  to  every  witness  are  fully  known 
to  both  parties  ;  and,  indeed,  in  the  laxity 
of  our  practice,  where  the  answers  of  the 
witness  are  usually  as  well  known  to  both 
parties.  So  that  there  is  no  general  ground 
tor  imputing  surprise.  Indeed,  in  this 
very  case,  it  is  admitted  by  the  learned 
counsel  for  the  defendant,  that  there  has 
not  Itccn  any  surprise.  The  second  ground 
is  applicable  here.  But,  then,  proofs,  doc- 
umentary or  otherwise,  may  be  ortered  as 
evidence  of  facts  charged  in  the  bill,  as 
well  as  admissions  and  conversations, 
which  it  might  be  equally  important  for 
the  defendant  to  have  an  opportunity  to 
deny  or  to  explain,  in  order  to  support  his 
defence.  Yet  the  evidence  of  such  facts  is 
not,  therefore,  inadmissible.  So  that  the 
exception  is  not  coextensive  with  the  sup- 
posed mischief 

"  But  it  seems  to  me  that  the  exception 
would  itself  be  productive  of  much  of  the 
mischief,  against  which  the  practice  of  the 
English  Court  of  Chancery  is  designed  to 
guard  suitors.  In  general,  the  tetstimony 
to  be  given  by  witne>ses  in  a  cause  at  issue 
in  Chancery,  is  studiously  concealed  until 

question  in  that  shape,  will  be  tried  in  that 
form  at  once,  without  reserving  it  until 
the  hearing.  Caipmael  v.  Powis,  1  Phill. 
Ch.  Ca.  687. 


284 


LAW    OF   EVIDENCE   IN  EQUITY. 


[part  VI 


miir  is  only  where  the  impertinence  relates  to  himself;  he  cannot 
object  to  an  interrogatory  because  it  is  immaterial  to  the  matter  in 


after  publication  is  formally  authorized  by 
the  Court.  The  witnesses  are  examined 
in  secret  upon  interrof,^atories  not  previous- 
ly made  known  to  the  other  party.  The 
object  of  this  course  is  to  prevent  the  fab- 
rication of  new  evidence  to  meet  the  exi- 
gencies of  the  cause,  and  to  take  away  the 
temptations  to  tamper  with  the  witnesses. 
Now,  if  the  exception  be  well  founded,  it 
will  (as  has  been  strongly  pressed  by  coun- 
sel) afford  great  opportunities  and  great 
temptations  to  tamper  with  witnesses,  who 
are  known  to  be  called  to  testify  to  particu- 
lar admissions  and  conversations.  So  that 
it  may  well  be  doubted,  whether,  consist- 
ently witii  the  avowed  objects  of  the  Eng- 
lish doctrines  on  the  subject,  such  an 
exception  could  be  safely  introduced  into 
the  English  Chancery.  There  is  another 
difficulty  in  admitting  the  exception  ;  and 
that  is,  that  there  is  no  reciprocity  in  it; 
for  while  the  defendant  in  a  suit  would 
have  the  full  benefit  of  it,  the  plaintiff 
would  have  none,  since  his  own  admissions 
and  conversations  might  be  used,  as  rebut- 
ting evidence,  against  his  claims  asserted 
in  the  bill,  although  they  were  not  specifi- 
cally referred  in  the  answer. 

"  Several  cases  have  been  referred  to, 
both  in  the  English  and  the  American 
Reports,  in  which  the  case  has  been  main- 
ly decided  upon  the  admissions  or  conver- 
sations of  the  parties,  which  were  not  specifi- 
cally stated  in  the  bill,  or  other  pleadings. 
I  have  examined  those  cases ;  and  al- 
though it  is  not  positively  certain,  that 
there  were  not  in  any  instance,  any  such 
admissions  or  conversations  charged  in  the 
bill,  yet  there  is  the  strongest  reason  to 
believe  that  such  was  the  fact;  and  no 
comment  of  the  counsel  or  of  the  Court 
would  lead  us  to  the  su])position,  that 
there  was  imagined  to  be  any  irregularity 
in  the  evidmce.  I  allude  to  the  cases  of 
Lench  v.  Leneii  (10  Ves.  K.  .511)  ;  Besant 
I'.  Richards  (1  Tamlyn,  R.  .509);  Neath- 
wav  V.  Ham  (1  Tamlvii,  R.  .31(5)  ;  Necot  i'. 
BaVnard  (4  Russ.  11.  247);  Park  ?•.  Peck 
(I  Taige,  R.  477)  ;  Marks  v.  Pell  (1  Johns, 
eh.  R.  594),  and  Harding  v.  WhvaUm, 
(11  Wheat.  R.  10.3;  8.  c.  2  Ma.son,  R. 
37.5).  So  far  as  my  own  recollection  of 
the  practice  in  the  Courts  of  the  Unitod 
States  has  gone,  I  can  say,  that  I  have 
not  the  sii^'htest  knowledge  that  any  such 
exception  has  ever  been  urged  in  tiic 
Circuit  Courts,  or  in  the  Su])reme  Court, 
although  numerous  occasions  have  ex- 
isted, in  which,  if  it  was  a  valid  objec- 
tion, it  must  have  been  highly  important, 


if  not  absolutely  decisive.  Until  a  com- 
paratively recent  period,  I  was  not  aware 
that  any  such  rule  was  insisted  on  in 
P2ngland  or  America,  notwithstanding  the 
case  of  Hall  v.  Maltby  (6  Price,  R.  250, 
252,  258).  Indeed,  Mr.  Gresley,  in  his  late 
Treatise  on  Evidence,  has  not  recognized 
any  such  rule,  although  in  one  passage  the 
subject  was  directly  under  his  consideration, 
and  he  relied  for  a  more  general  purpose  on 
that  ver^'  case.  If  it  had  been  clearly  set- 
tled in  England,  it  would  have  scarcely 
escaped  the  attention  of  any  elementary 
writer,  professedly  discussing  the  general 
doctrines  of  evidence  in  Courts  of  Equity. 

"  My  opinion  is,  that  the  principle  to  be 
deduced  from  the  case  in  6  Price,  R.  250, 
before  the  Lord  Chief  Baron  Richards, 
supported  as  it  is  by  the  other  cases  already 
cited  before  Lord  Chancellor  Hart,  is  not 
of  sufficient  authority  to  establish  the  ex- 
ception contended  for,  as  an  exception 
known  and  acted  upon  in  the  Court  of 
Chancery  in  England,  whose  practice,  and 
not  that  of  the  Court  Exchequer,  furnishes 
the  basis  of  the  equity  practice  of  the 
Courts  of  the  United  States.  I  have  a 
very  strong  impression  that,  in  America, 
the  generally  received,  if  not  the  universal 
practice,  is  against  the  validity  of  the  ex- 
ception. If  the  authorities  were  clear  the 
other  way,  I  should  follow  them.  But  if 
I  am  to  decide  the  point  upon  general  prin- 
ciples, independent  of  authority,  I  must 
say,  that  I  cannot  persuade  myself  that 
the  exception  is  well  founded  in  the  doc- 
trines of  equity  jurisprudence,  as  to  plead- 
ings or  evidence. 

"  The  exception,  therefore,  to  the  mas- 
ter's report  must  be  overruled.  It  would 
be  a  very  different  question,  if  the  bill 
should  contain  no  charges,  as  to  admis- 
sions or  conversations  of  the  defendant, 
and  the  defendant  should  be  surjirised  at 
the  hearing  by  evidence  of  such  admissions 
and  conversations  in  sujmort  of  the  facts 
put  in  issue,  whether  the  Court  would  not, 
for  the  purpose  of  justice,  emible  the  de- 
fendant to  countervail  such  evidence,  by 
giving  him  leave  to  offer  other  evidence, 
explanatory  or  in  denial  of  it,  upon  refer- 
ence to  the  master,  or  by  an  issue,  as  was 
done  in  the  case  of  Earle  v.  Pickin  ( 1  Russ. 
&  Mylne,  R.  447).  I  imagine,  that  one 
reason  why,  when  evidence  of  admissions 
or  conversations  of  the  defendant  is  in- 
tended to  l>e  introduced,  in  sii])port  of 
facts  charged  in  the  bill,  and  j)Ut  in  issue, 
such  admissions  and  conversations  arc  so 
often  charged  in  the  bill,  is  to  avoid  the 


PART  VI.]       SOUECES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  285 

issue,  for  this  is  the  right  of  the  party  alone.^  Usually,  but  not 
necessarily,  the  interrogatories  are  closed  by  what  is  termed  the 
general  interrogatory,  the  form  of  which  is  prescribed  in  the 
Rules,2  and  if  propounded,  this  also  must  be  answered  as  well  as 
tlie  others,  or  the  deposition  will  be  suppressed.^    If  a  material 


very  difficulties  in  whiqh  the  omission 
must  leave  the  cause ;  viz.  the  little  con- 
fidence which  the  Court  would  give  to  it, 
as  a  species  of  evidence  easily  fobricated, 
and  the  inclination  of  the  Court  to  en- 
deavor, by  a  reference  or  an  issue,  to  over- 
come its  force. 

"  I  have  not  thought  it  necessary,  in  the 
view  which  has  been  taken  of  the  excep- 
tion to  the  report  of  the  master,  to  consid- 
er with  much  care  the  other  objection 
made  to  the  exception ;  to  wit,  that  the 
admissions  and  conversations  are  suffi- 
ciently charged  in  the  bill  to  let  in  the  evi- 
dence even  if  the  rule  were  as  the  plain- 
tiff's counsel  has  contended  it  to  be.  The 
only  charge  bearing  on  this  matter  is,  that 
'  at  all  the  times  aforesaid,  as  well  as  at 
divers  other  times,  through  all  the  negotia- 
tions aforesaid,  as  well  as  in  many  other 
negotiations  in  relation  to  the  contract 
aforesaid,  the  said  Daniel  Burnham  (the 
defendant)  constantly  .spoke  of  the  said  in- 
terest in  tlie  said  lands  of  the  said  Black 
as  belonging  to  the  said  copartnership,  and 
spoke  of,  recognized,  and  treated  your 
orator  as  having  an  equal  and  copartner- 
ship right  therein.'  This  language  is 
somewhat  indeterminate ;  for  it  is  not 
charged  whether  the  defendant  spoke  to 
the  plaintiff  or  to  third  persons  ;  and  no 
persons  in  particular  are  named,  with  whom 
he  held  any  conversations  on  the  subject. 
If  the  rule  contended  for  existed,  I  should 
greatly  doubt  whether  such  an  allegation, 
in  such  loose  and  uncertain  terms,  was  a 
sufficient  compliance  with  it ;  for  it  would 
lie  open  to  all  the  objections  against  which 
the  rule  is  supposed  to  be  aimed.  The 
defendant,  to  so  general  a  charge,  could 
do  no  more  than  make  a  very  general 
answer.  So  that  ho  would  be  deprived  of 
all  the  benefit  of  all  explanations  and 
denials  of  particular  conversations.  But 
it  is  unnecessary  to  dwell  on  this  point, 
as  the  other  is  decisive."  Id.  pp.  622- 
627. 

The  same  question  was,  eight  years  af- 
terwards, again  raised  before  this  learned 
Judge,  in  Jenkins  v.  Eldredge,  3  Story,  R. 
183,  who  adhered  to  his  former  opinion, 
expressing  himself  as  follows  :  "  But  here 
we  are  met  by  an  objection,  —  that  much 
of  the  evidence  stands  upon  confessions 
and  statements  made  by  Eldredge,   and 


testified  to  by  the  witnesses,  which  are  not 
charged  in  the  bUl,  so  as  to  let  them  in  as 
proper  evidence.  And  in  support  of  this 
objection,  among  other  cases,  Hughes  v. 
Garnett  (2  Younge  &  Coll.  328)  ;  Graham 
V.  Oliver  (3  Beavan,  R.  124);  Earle  v. 
Pickin  (I  Russ.  &Mylne,  547);  and  espe- 
cially Atwood  V.  Small  (6  Clark  &  Finnell. 
R.  360),  are  cited.  I  had  occasion,  in  the 
case  of^  Smith  v.  Burnham  (2  Sumner,  R. 
612),  fully  to  consider  this  whole  matter; 
and  I  remain  of  the  opinion  then  expressed, 
that  there  is  no  difference,  and  ought  to  be 
no  difference,  in  cases  of  this  sort,  between 
the  rules  of  a  Court  of  Law  and  those  of 
a  Court  of  Equity,  as  to  the  admission 
of  such  evidence.  Its  admissibility  may, 
however,  be  properly  subject,  under  par- 
ticular circumstances,  to  this  qualification 
(which  Lord  Cottenham  is  said  to  have 
supported),  that  if  one  party  should  keep 
back  evidence  which  the  other  might  ex- 
plain, and  thereby  take  him  by  surprise, 
the  Court  will  give  no  effect  to  such  evi- 
dence, without  first  giving  the  party  to  be 
affected  by  it  an  opportunity  of  controvert- 
ing it.  Tliis  course  may  be  a  fit  one,  in  cases 
where,  otherwise,  gross  injustice  may  be 
done  ;  but  I  consider  it  as  a  matter  resting 
in  the  sound  discretion  of  the  Court,  and 
not  strictly  a  rule  of  evidence.  But  what- 
ever may  be  the  rule  of  evidence  in  Eng- 
land on  this  point,  it  is  not  so  in  America ; 
and  our  practice  in  Equity  causes,  where 
the  evidence  is  generally  open  to  both  par- 
ties, rarely  can  justify,  if,  indeed,  it  ever 
should  require,  the  introduction  of  such  a 
rule.  Mr.  Vice-Chancellor  Wigram,  in 
Malcolm  v.  Scott  (3  Hare,  R.  39,  63), 
seems  to  me  to  have  viewed  the  rule  very- 
much  under  the  same  aspect  as  I  do.  But, 
at  aU  events,  the  practice  is  entirely  set- 
tled in  this  Court,  and  I,  for  one,  feel  not 
the  slightest  inclination  to  depart  from  it, 
be  the  rule  in  England  as  it  may."  3 
Story,  R.  283,  284.  See  also  Story,  Eq. 
PI.  §  263  a,  note;  Ante,  Vol.  I,  §  171, 
note. 

1  Ashton  V.  Ashton,  1  Vem.  165 ;  Tip- 
pins  V.  Coates,  6  Hare,  21  ;  Langlev  v. 
Fisher,  9  Jur.  1066  ;  5  Bcav.  443. 

2  Rules  for  Circuit  Courts  in  Equity, 
Reg.  71. 

^  See  supra,  §  320 ;  Richardson  v.  Gold- 
en, 3  Wash.  109. 


286 


LAW    OF   EVIDENCE   IX   EQUITY. 


[part  VI. 


part  of  the  evidence  comes  out  under  the  general  interrogatory, 
this  is  no  valid  objection  to  the  deposition.^ 

§  324.  In  taking  the  examination  upon  written  interrogatories, 
the  witness  having  been  duly  sworn,  the  commissioner  or  exam- 
iner is  to  put  the  interrogatories  singly  and  seriatim^  in  the  order  in 
which  they  are  written ;  and  may  explain  to  the  witness  their  im- 
port and  meaning ;  but  should  not  permit  him  to  read  or  hear  any 
other  interrogatory,  until  the  one  already  propounded  be  fully  an- 
swered ;  nor  unnecessarily  to  depart  until  the  examination  is  con- 
cluded. The  answers  must  be  written  down  by  the  commissioner, 
or  examiner,  or  by  his  clerk  in  his  presence  and  under  his  direc- 
tion ;  after  which,  the  whole  is  to  be  distinctly  read  over  to  the 
witness,  and  signed  by  him.^  He  may  make  any  correction  in  his 
testimony,  by  an  explanatory  addition  thereto,  at  any  time  before 
he  departs  from  the  presence  of  the  commissioner  or  examiner, 
though  the  examination  be  signed  and  closed  ;  but  not  afterwards, 
unless  by  leave  of  the  Court  for  that  purpose.^     The  depositions 

1  Rhoades  v.  Selin,  4  Wash.  715. 

'  2  Dan.  Ch.  Pr.  1061-1064,  1088-1090 
[*3d  Amer.  Ed.  916-920,9.36,937].  It  is 
to  be  rcmemhcrc'd,  that  witnesses  may  al- 
ways be  examined  viva  voce,  by  consent  of 
parties,  either  by  the  parties  or  their  coun- 
sel, or  by  the  commissioner  or  examiner, 
or  by  a  master  if  the  case  is  before  him. 
Sec  Story  v.  Livingston,  13  Peters,  3.59, 
368 ;  Rules  for  Circuit  Courts  in  K(iuitv, 
Rej;.  78. 

»  2  Dan.  Ch.  Pr.  1064,  1089  [*.3d  Amer. 
Ed.  920,  936]  ;  Abergf.vennv,  Ld.,  v.  Pow- 
ell, 1  Mlt.  1.30.  And  see  Griells  v.  Gan- 
sell,  2  P.  Wms.  646  ;  2  Eq.  Cas.  Abr.  59, 
pi.  6,  S  C. ;  Kingston  v.  Tappcn,  1  Johns. 
t.'h.  368.  The  course  of  proceedings  pur- 
sued by  Examiners  in  Enghmd  is  stated 
by  Mr.  Phunmcr.  in  his  answers  returned 
to  the  Chancery  Commission,  in  the  fol- 
lowing terms  :  — 

"The  Examiners  are  two  in  number; 
one  examines  the  phiintitf's  witnesses,  the 
otiier  the  defendant's.  A  set  of  interroga- 
tories, engro-sed  on  parchment,  with  coun- 
sel's name  attached,  is  brought  to  the 
office  by  the  solicitor,  and  lodged  with  tlio 
sworn  clerk.  This  is  called  filing  inter- 
rogatories. 

"  The  solicitor,  at  the  same  time,  usually 
makes  an  a|i])ointnictit  for  the  attendance 
of  witnesses  to  be  examined  upon  tliein, 
and  secures  one.  two,  or  more  days,  as 
he  supposes  the  examination  will  occupy. 
Upon  the  witnesses  attending,  they  arc 
taken  up  liy  the  sworn  clerk  to  the  six 
clerks'  olhce,  and  produced  at  the  seat  of 


the  clerk  in  Court  for  the  opposite  party ; 
and  a  note  of  the  name,  residence,  and 
description  of  each  witness  is  left  there. 
From  the  six  clerks'  office  the  witnesses 
proceed  with  the  same  officer  to  the  public 
office,  where  they  are  sworn  before  the 
Master  in  Chancery,  who  certifies  that 
fact,  by  affixing  a  memorandum  of  it 
upon  the  interrogatories,  in  the  following 
form :  — 

'"A.  B.  and  C.  D.,  both  sworn  before 
me  at   the  public  office,  this day  of 


(Signed.) 

"  The  examination  bears  date  from  the 
time  of  the  witnesses  being  sworn,  though 
they  may,  perhaps,  not  be  examined  ibr 
several  days  afterwards. 

"  If  the  witness  is  prevented,  by  age  or 
infirmity,  from  attending  in  person,  an 
order  is  obtained  that  he  may  be  examined 
at  his  own  residence;  and  in  that  case  the 
Master  in  Chancery  attends  there  to  ad- 
minister the  oath,  and  tlie  Examiner  to 
take  liis  deposition. 

"  If,  after  the  witnesses  have  been  sworn, 
any  alteration  is  made  in  the  title,  or  any 
other  part  of  the  interrogatories,  tliey  must 
be  resworn,  but  not  reproduced. 

"Before  the  witiu'sscs  arc  examined, 
the  Examiner  ought  to  be,  and  generally 
is,  furnished  bv  the' solicitor  with  instruc- 
tions, as  to  wliich  of  the  interrogatories 
each  witness  is  to  be  examined  u])on. 

"  The  solicitor,  also.  suj)p!ies  a  minute 
of  the  evidence  he  expects  his  witnes.-cs  to 


PART  Vr.]      SOURCES,  MEANS,  AND   INSTRUMENTS   OF  EVIDENCE.  287 

are  then  certified  by  the  commissioner  or  examiner,  and  sealed  up, 
with  the  commission  or  order  of  Court,  on  the  back  of  which  his 
doings  are  certified  ;  and  the  wliole  is  returned  to  the  Court  with- 
in the  time  limited  by  the  rules.  If  a  witness  does  not  under- 
stand the  English  language,  the  commissioner,  vlrtute  officii^  may 
appoint  an  interpreter,^  who  should  be  sworn  truly  to  interpret  be- 


give;  but  of  such  paper  no  use  can  be 
made  in  tlie  examination.  On  the  return 
of  the  witness  to  the  Examiner's  offiee, 
from  hcinj^  sworn,  they  are  examined 
separately,  and  in  secret  (that  is,  witliout 
any  third  person  being  present),  by  the 
Examiner,  who  reads  over  the  interroga- 
tories successively,  and  taki-s  down  the 
answer  in  writing,  concluding  the  answer 
to  each  interrogatory  hef'ore  the  following 
one  is  put.  The  Examiner  considers  him- 
self bound,  and  strictly  bound,  to  adhere 
to  the  record  ;  hut  if  an  ambiguity  occurs 
in  the  interrogatory,  and  the  witness  does 
not  strictly  comprehend  its  meaning,  the 
Examiner  feels  himself  at  liberty  to  give 
an  explanation;  and,  if  necessary,  as  is 
frequently  the  case  with  country  witnesses 
and  unprofessional  persons,  to  couch  it  in 
less  technical  and  more  familiar  language ; 
taking  care,  hon-ever,  that  the  answer 
ultimately  elicited  and  recorded  shall  be 
strictly  an  answer  to  the  terms  of  the  in- 
terrogatory. 

"  When  all  the  interrogatories,  upon 
which  the  Examiner  was  intrusted  to  ex- 
amine the  witnesses,  have  been  thus  gone 
through,  thi3  Examiner  carefully  reads 
over  the  whole  deposition  to  the  witness, 
who,  if  he  be  satisfied  with  it,  signs  each 
sheet  of  it  in  the  presence  of  the  Examiner. 
If,  however,  the  witness,  upon  considera- 
tion, wishes  to  vary  his  testimony,  or  to 
make  any  alteration  in  or  addition  to  it, 
he  is  at  liberty  to  do  so  betbre  signing  the 
deposition. 

"  After  the  deposition  has  been  signed, 
and  the  witness  has  left  the  office,  the  rule 
is  almost  invariable,  that  no  further  altera- 
tion or  addition  can  be  made  without 
special  leave  of  the  Court.  The  only 
exceptions  are,  where  a  witness,  speaking 
from  recollection  of  the  contents  of  a  writ- 
ten document,  finds,  on  referring  to  the 
document,  that  he  has  made  a  mistake  in 
a  date  or  sum.  Upon  the  document  be- 
ing produced  to  the  Examiner,  he  consid- 
ers himself  at  liberty  to  correct  the  error. 
Or.  where  the  witness  can  satisfy  the  Ex- 
aminer that  the  statement  sought  to  be 
added  was  actually  made  to  the  Examiner 
during  the  examination,  but  inadvertently 
omitted  to  be  taken  down  by  him,  the 
Examiner  considers  that  he  may  supply 


his  own  omission ;  the  principle  in  Iwth 
cases  being,  that  the  CAidence  could  not 
be  of  subsequent  manufacture.  The  same 
witness  cannot  be  re-examined  upon  the 
same  interrogatories,  or  to  the  same  mat- 
ter, without  an  order  of  the  Court ;  but 
he  may,  at  any  time  before  publication 
pas.ses,  be  examined  upon  any  one  or  more 
of  the  interrogatories  already  filed,  upon 
which  he  was  not  previously  examined ; 
or  additional  interrogatories  may  be  filed 
for  the  further  examination  of  a  witness 
previously  examined,  provided  they  are 
not  to  the  same  points. 

■'  If  the  opposite  party  intends  to  cross- 
examine,  notice  of  that  intention  is  left 
with  the  Examiner  who  examines  the 
witnesses  in  chief;  the  cross-interroga- 
tories are  filled  with  the  other  Examiner; 
and  the  witness,  after  having  completed 
his  examination  in  chief,  attends  at  the 
other  office  to  be  examined  upon  them. 

■'  The  depositions,  when  taken,  remain 
with  the  Examiner,  who  is  bound  by  oath 
not  to  communicate  their  contents  to  either 
party  until  the  time  expires  within  which, 
according  to  the  rules  of  the  Court,  both 
sides  must  have  concluded  their  evidence. 
Publication  (as  it  is  termed)  then  passes. 
This  time  is  frequently  extended,  by  order, 
or  consent  of  parties.  When  publication 
has  passed,  the  Examiner  gives  out  the 
original  depositions  to  the  sworn  or  copy- 
ing clerk,  who  makes  copies  of  them  for 
the  parties,  when  ordered  by  them.  To 
the  copy  of  the  depositions  made  for  the 
opposite  party,  a  copy  of  the  interroga- 
tories is  added ;  but  the  party  who  filed 
the  interrogatories  does  not  take  a  copy 
of  them.  Each  copy  is  signed  by  the 
Examiner,  to  authenticate  it,  and,  upon 
its  being  taken  away,  the  fees  due  to  the 
offiee  are  paid.  P>very  document  or  ex- 
hibit, referred  to  in  the  deposition,  is  also 
signed  by  the  Examiner,  before  it  is  re- 
turned to  the  party  proilucing  it."  See 
Gresley,  Eq.  I'.vid.  pp.  63-72.  And  see 
1  Hofiin.  Ch.  Pr.  462-464. 

1  Amory  v.  Fellowes,  5  Mass.  22.5,  226 ; 
Gilpins  V.  Conscqua,  1  Pet.  C.  C  R.  88. 
But  Lord  Nottingham  established  a  rule, 
that  no  alien  should  be  examined  as  a  wit- 
ness, without  a  motion  first  made  in  Court 
to  swear  an  interpreter,  so  that  the  other 


288  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI 

twecn  the  commissioner  and  the  witness  ;  and  the  answers  of  the 
witness  are  to  be  taken  down  in  English,  through  the  interpreter.^ 

§  325.  Testimony  may  also  be  taken  in  perpetuam  rei  memoriam, 
by  a  commission,  issued  pursuant  to  a  bill  filed  for  that  purpose  ; 
which  every  Court,  having  general  jurisdiction  in  Equity,  has  in- 
herent power  to  sustain.^  The  commission  is  executed  as  in  other 
cases.  But  as  this  subject  is  regulated  by  statutes  in  most  of  the 
United  States,  and  the  mode  of  taking  depositions  has  been  stated 
in  a  preceding  volume,^  with  as  much  particularity  as  the  nature 
of  this  treatise  will  permit,  it  will  not,  in  this  case,  be  further 
pursued. 

§  326.  In  regard  to  the  admissihility  of  depositions  in  Equity, 
it  is  held,  that  where  depositions,  not  legally  entitled  to  be  read, 
are  admitted  hy  consent  of  parties,  this  consent  is  coextensive  with 
the  cause,  and  under  it  the  depositions  may  be  read  at  every  fu- 
ture hearing  of  the  same  cause,  whether  it  be  in  the  higher  Court, 
on  appeal,  or  in  the  same  Court,  after  the  decree  has  been  re- 
versed in  the  appellate  Court,  and  the  cause  remanded  for  further 
proceedings.*  And  depositions,  read  at  the  hearing,  are  also  ad- 
missible in  evidence  on  the  trial  of  an  issue  out  of  Chancery.^  If 
they  have  once  been  read  ivitlioiit  objection  in  the  Court  below,  this 
is  evidence  of  consent,  entitling  them  to  be  read  in  the  higher 
Court,  on  appeal.^     The  deposition  of  the  party  himself,  in  a  bill 

side  may  know  him  and  take  their  excep-  9  Jur.  N.  S.  530,  Sir  J.  Romilly,  M.  R., 
tions  tohim.  2  Swanst.  261,  n.  When  a  declares  that  the  proper  mode  of  examin- 
commission  is  sent  abroad,  it  is  usual  to  ing  the  defendant,  where  it  is  desired  to 
insert  a  special  direction  to  employ  an  in-  perpetuate  his  testimony,  in  regard  to  the 
teriireter,  if  necessary.  Lord  Belmore  v.  matter  in  which  his  interest  is  adverse  to 
Andenson,  4  Bro.  Ch".  C.  90.  But  this  is  that  of  the  plaintiff,  is  the  same  as  that  of 
su])crfluous ;  especially  if  they  are  author-  examining  all  other  witnesses,  and  it  is 
i/,ed,  in  general  terms,  to  examine  such  or  only  by  so  examining  him,  that  his  dejto- 
sucli  other  witnesses  as  may  come  before  sition  can  be  made  evidence  at  any  future 
them ;  for  the  interpreter  is  a  witness.  5  period,  in  another  suit.  The  rule  in  re- 
Mass.  226.  gard  to  bills  for  perpetuating  testimony  is 

^  Lord  Belmore  v.  Anderson,  4  Bro.  here  stated  to  be  that  the  defendants,  by 
Ch.  C.  90 ;  2  Cox,  88,  S.  C. ;  2  Dan.  Ch.  consenting  to  an.swer  the  plaintiff's  bill, 
Pr.  1063,  1088;  Gresley,  Eq.  Kvid.  119;  admit  his  right  to  examine  witnesses  in 
Smith  c.  Kirkpatrick,  1  Dick.  103.  At  the  case,  and  that  implies  all  that  is  dc- 
law,  a  deposition  taken  abroad  is  admissi-  manded  in  the  bill.  For  if  there  is  really 
ble,  though  it  be  written,  signed,  and  any /»««. //We  controversy  between  the  par- 
sworn  in  a  foreign  language,  and  .some  ties,  the  right  to  perpetuate  the  testimony 
weeks  afterwards  translated  and  certified  follows  as  matter  of  course.] 
under  oath  by  the  interpreter;  the  trans-  »  See«/K'e,  Vol.  1,  §§320 -325.  See  also 
lation  iicing  annexed  to  and  returned  as  Gresley,  Eq.  Evid.  129-135;  3  Monthly 
part  of  the  return  to  the  commission.     At-  Law  Reporter,  256. 

kins  V.  Palmer,  4  B.  &  Aid.  377.     No  good  *  Vattier  i.'.  Hinde,  7  Pet.  152;  Hinde 

reason  is  perceived  why  it  should  not  be  v.  Vattier,  1  McLean,  110. 

Cfpially  admissible  in  Ecjuity.  ^  Austin  y.  Winston,  1  Hen.  &  Mnnf.  33. 

-  See  Story,  Eq.  PI.  §§  300-306 ;  Ante,  •^  Johnson  v.  Rankin,  3  Bibb,  86  ;  Gibbs 

Vol.  1,  324,  323.     [*  In  Ellice  i;.  Roupcll,  v.  Cook,  4  Bibb,  535. 


PAKT  Y[.']      SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  289 

of  revivor,  taken  before  the  death  of  the  original  complainant,  and 
while  tlie  deponent  had  no  interest  in  the  suit,  is  evidence  for  him 
at  the  final  hearing. ^  So,  if  the  deposition  of  the  plaintiff  is 
taken  under  an  order  obtained  by  the  defendant,  it  is  admissible 
in  evidence  for  the  plaintiff,  though  it  goes  to  support  his  case.^ 
But  if  the  deponent  becomes  interested  in  the  subject  of  the  con- 
troversy, during  the  period  l)etween  the  beginning  and  the  end  of 
his  examination,  that  portion  of  his  testimony  which  was  given 
before  his  interest  commenced  may,  in  the  discretion  of  the 
Court,  be  received,  if  it  be  complete  and  distinct  as  to  the  matters 
of  which  he  speaks ;  and  every  part  of  his  answers,  as  to  matters 
to  which  his  interest  does  not  relate,  will  be  received.^  But  no 
deposition  will  be  admitted  to  be  read,  against  a  party  brought  in 
after  it  was  taken,  or  too  late  to  exercise  the  right  of  cross-exami- 
nation.* Depositions  taken  in  another  suit,  between  the  same  par- 
ties or  their  privies  in  estate,  may  also  be  read  at  the  hearing, 
after  an  order  obtained  for  that  purpose.^ 

§  327.  The  rules  and  principles,  by  which  the  examination  of 
witnesses  is  conducted  in  Equity,  are  in  general  the  same  which 
have  been  stated  in  a  preceding  volume  as  applied  in  Courts 
of  Law  ;  and  therefore  require  no  furtlier  notice  in  this  place.^ 

5.    INSPECTIOX   IN   AID   OF   PROOF, 

§  328.  Trial  by  inspection,  or  personal  examination  of  the  sub- 
ject of  controversy,  by  the  Judge,  was  anciently  familiar  in  the 
Courts  of  Common  Law ; "'  and  though,  as  a  formal  and  distinct. 

1  Hitchcock  V.  Skinner,  1  Hoffm.  Ch.  R.  between  parties,  the  testimony  of  a  witness 

21;   Brown  r.  Grcenley,  2  Dick.  504.  since  deceased  has   been   received,   which 

-  Lewis  y.  Brooks,  6  Yerg.  167.  either  of  those  parties  might  use  against 

3  O'Callaghan   ;;.    Murphy,    2    Sch.    &  the  other,  that  evidence  may  be  used  be- 

Lefr.  158;  Fream  v.   Dickinson,  3  Edw.  tween  the  same  parties,  in  any  subsequent 

Ch.  R.  300;  2  Dan.  Ch.  Pr.  1064.     And  proceedings  on  the  same  issue ;  and  in  Wii- 

see  ante,  Vol.  1,  §  168;  Greslcy,  Eq.  Evid.  Hams  v.  Williams,  10  Jur.  N.  S.  608,  the 

366,    367;  Haws    v.    Hand,    2   Atk.    615;  general  rule  is  stated  thus  by  Sir  R.  T. 

Gosse  V.  Tracy,  2  Vern.  699 ;  1  P.  Wms.  Kindersley,  V.  C.  :  "  The  principle  upon 

287,  S.  C. ;  Cope  v.  Parry,  2  Jac.  &  Walk,  which  the  Court  acts  in  these  cases  is,  thnt 

538.  if  there  is  another  suit  instituted  between 

*  Jones  v.  Williams,  1  Wash.  230;  Clary  the  same  parties  or  their  representative.-. 

V.  Grimes,  12  G.  &  J.  31  ;   Jenkins  v.  Bis-  and    the   issue   is  substantially  the    same 

bee,   1   Edw.  Ch.  R.  377.     And  see  anta,  in  both,  that  which  would  be,  and  in  fact 

Vol.  1,  §§  426,  554;  Pretty  v.  Parker,  1  was,  evidence  in  the  former  suit  may  be 

Cooper,  38,  n.  read  in  the  latter,  and  the  Court  may  so 

"  2  Dan.  Ch.  Pr.  101 1  - 101 6  |*  3d  Amer.  order  it  to  be  used,  "  saving  all  just  excep- 

Ed.  865-869];  Brooks  v.  Cannon,  2  A.  tions."] 

K.  Marsh.  525  ;  Ante,  Vol.  1,  §§  523,  525,         6  See  ante,  Vol.  1,    §§   431  -469.     Sec 

552,  553.     [*  Leviston  v.  French,  45  N.  H.  also  2  Dan.  Ch.  Pr.  1045-1051  [*  3d  Amer. 

Rep.  21.     In  Lawrence  v.  Miule,  4  Drew.  Ed.  908-915]. 
479,  it  is  held  that,  where  upon  an  issue         <  3  Bl.  Comm.  331 ;  9  Co.  30. 

VOL.  III.  19 


290  LAW   OF   EVIDENCE   IN  EQUITY.  [PART  VI. 

mode  of  trial,  it  has  fallen  into  disuse,  yet  as  a  matter  of  proof, 
ancillary  to  other  testimony,  parties  are  still  permitted,  in  all  our 
tribunals,  to  exhibit  to  the  Court  and  Jury,  persons,  models,  and 
things  not  cumbrous,  whenever  the  inspection  of  them  may  tend 
to  the  discovery  of  the  truth  of  the  matter  in  controversy.  In 
Courts  of  Law,  however,  this  is  only  permitted,  or,  at  furthest, 
sometimes  suggested  by  the  Judge  ;  it  being  seldom,  if  ever, 
ordered ;  but  in  Courts  of  Equity,  the  Judge  will  often  order  the 
production  of  such  subjects  before  him,  for  his  own  better  satisfac- 
tion as  to  the  truth.  Thus  he  will  order  an  infant  to  be  produced 
in  Court  for  satisfactory  proof  of  his  existence,  age,  and  discretion ; 
or  an  original  document  or  hook^  to  be  satisfied  of  its  genuineness 
and  integrity,  or  its  age  and  precise  state  and  character ;  or  the 
like.^  And  where  the  subject  is  immovable,  the  Court  will  order 
the  party  in  possession  to  permit  an  inspection  by  witnesses.^ 

§  329.  But  it  is  in  bills  of  injunction,  to  restrain  the  violation 
0^ patent  rights  and  copyrights^  that  this  power  of  a  Court  of  Equity 
is  most  frequently  called  into  exercise.  In  the  case  of  patents, 
nothing  is  more  familiarly  seen  than  the  machine  or  instrument 
itself,  or  an  accurate  working  model,  under  inspection  at  the  hear- 
ing. But  in  these  cases  it  is  not  unusual,  and  in  those  of  copy- 
rights it  is  almost  the  invariable  course  to  refer  it  to  a  master  or 
other  competent  person,  who  for  this  purpose  represents  the  Court, 
to  compare  critically  the  machine,  map,  book,  work  of  art,  or  inven- 
tion, claimed  as  original,  with  that  which  is  alleged  to  be  piratical 
and  spurious,  and  to  report  their  opinion  to  the  Court ;  ^  though  in 
cases  easily  capable  of  decision  upon  a  brief  inspection,  without  too 
great  a  demand  upon  the  time  of  the  Judge,  he  will  examine  and 
decide  for  himself.^ 

6.  FURTHER  INFORMATION  REQUIRED  BY  THE  COURT. 

§  330.  The  right  of  the  Judge  to  require  further  proof  upon 
any  point  under  his  consideration,  without  the  motion  and  even 
against  the  will  of  the  parties,  is  peculiar  to  Courts  proceeding 
according  to  the  course  of  Chancery.     At  Common  Law,  no  such 

1  Grcslcy,   Eq.    Evid.  451-454  ;  Com-  v.  Bowles,  2  Bro.  Cli.  C.  80;  Leadbettcr's 

stock  i;.  Apthorpc,  8  Cowcn,  386;  Ilopk.  case,  4  Ves.  681  ;    Mawman   v.    Tc<,'g,    2 

Ch.  R.  14;5,  S.  C.      And   sec   Louisiana,  Uuss.  385;  Gray  c  Husscll,  1  Story,   R. 

Code  of  rracticc,  art.  139.  11  ;  2  Story,  Eq.  Jiir.  §  941. 

'^  Kyna-ston    v.  E.  Ind.  Co,  3  Swanst.  *  Butterworth  r.  Kohinson,  5  Ves.  709; 

249.  Slicriffr.  Coates.  1  Riiss.  &  My.  159  ;  Ex 

8  Gyles  V.  Wilcox,  2  Atk.  141  ;  Carnan  parte  Fox,  1  V.  &  B.  67. 


PART  VI.]      SOURCES,  MEANS,  AND   INSTRUMENTS    OF  EVIDENCE.  291 

power  is  recognized  ;  the  Courts  being  obliged  to  try  and  determine 
the  issue,  upon  such  proofs  as  the  parties  may  choose  to  produce 
before  them,  the  Jury  finding  the  fact  forthwith,  according  to 
the  balance  of  the  evidence  in  favor  of  the  one  side  or  the  other. 
But  in  Chancery,  the  Judge  may  not  only  postpone  his  judgment, 
but  if  he  deems  the  evidence  unsatisfactory,  or  is  unable  to  solve 
the  question  upon  the  proofs  already  in  the  case,  or  from  his  own 
resources,  he  may  require  further  information.  This  right  of  the 
Judge  is  inherent  in  his  office,  and  does  not  depend  on  any  consent 
of  the  parties,  nor  whether  the  matters  of  which  he  would  inquire 
have  be-en  put  in  issue  by  the  pleadings.  It  may  even  be  matter 
which  both  parties  would  fain  conceal  from  his  notice  ;  as  in  the 
case  supposed  by  Sir  Thomas  Plumer,  M.  R.,  of  a  bill  for  the 
specific  performance  of  a  contract  for  the  purchase  of  a  cargo, 
which,  in  the  course  of  the  evidence,  would  appear  to  have  been 
smuggled  ;  or  where  the  principal  transaction  involved  another 
which  was  illegal ;  ^  or,  it  may  be  matter  possibly  affecting  the  in- 
terests of  persons  not  before  the  Court. 

§  331.  One  of  the  modes  in  which  this  right  is  exercised  is  by 
examining  witnesses  vivd  voce,  in  open  Court.  Ordinarily,  as  we 
have  seen,  this  course  is  not  resorted  to,  except  for  the  formal 
proof  of  exhibits.  But  it  is  employed  in  cases  of  contempt ;  ^  and 
in  questions  as  to  the  proper  custody  of  a  ivard ;^  and  in  other  cases 
of  emergency,  immediately  addressed  to  the  discretion  of  the 
Judge,  or  upon  which  he  entertains  doubt.* 

§  332.  Another  of  these  modes  is  by  reference  to  a  master,  his 
office  being  a  branch  of  the  Court,  whose  instructions,  therefore, 
he  is  bound  implicitly  to  follow.^  The  subjects  of  such  reference, 
which  are  numerous,  may  be  distributed  under  three  general 
heads,  namely,  the  protection  of  absent  parties  against  the  possible 
neglect  or  malfeasance  of  the  litigants  ;  —  the  more  effectual  work- 
ing out  of  details,  which  the  Judge,  sitting  in  Court,  is  unable  to 
investigate;  —  and  the  supplying  of  defects  or  failures  in  evidence.*' 

1  Parker?;.  Whitby,  T.  &R.  371.  ^  Stewart   v.   Turner,   3   Edw.   Ch.  R. 

2  Moore  v.  Aylett,  Dick.  643  ;  Gas-  458  ;  Fenwicke  v.  Gibbes,  2  Dessaus.  629  ; 
coygne's  case,  1 4  Ves.  1 83  ;  Turner  v.  Bur-  Smith  v.  Webster,  3  My.  &  C.  304.  Hence 
leigh,  17  Ves.  354.  also,  a  witness  before  the  master  is    ))ro- 

''  Bates,  pxparfe,  Greslev,  Eq.  Evid.  494.  tected  from  arrest,  enndo,  morando,  et   re- 

*  Bishop  i;.  Church,  2  "Ves.  100,    106;  deundo.     Sidgier  r.  Bircli,  9  Ves.  69. 

Lord,  ex  parte,  Id.  26  ;  Bank  v.  Farques,  '^  Adams,  Doctr.  of  Eq.  p.   [379],  672. 

Ambl.  145.     And  see  4  Ves.  762,  per  Ld.  ["  The  reference  _/br  ^Ae /(w^ec^/on  of  absent 

Alvanley,  M.  R. ;  Barnes  v.  Stuart,   1   Y.  parties  is   made   where    the  claim,  or  the 

&  C.  139,  per  Alderson,  B. ;  Margareson  c.  possibility  of  a  claim,  to  the  property  in 

Saxton,  Id.  532.  suit,   belongs  to  creditors  or  the  next  of 


292 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  VL 


But  a  reference  is  never  made  to  establish,  in  the  first  instance,  a 
fact  put  in  issue  by  the  pleadings,  and  constituting  an  essential 
element  in  the  controversy.^ 

§  333.  The  authority  of  the  master,  which,  by  the  former  practice, 
was  generally  stated  in  every  order  of  reference,  is  now  given,  in 
the  Courts  of  the  United  States,  by  a  general  rule  for  that  purpose.^ 
This  rule  directs  that  the  master  shall  regulate  all  the  proceed- 
ings, in  every  hearing  before  him,  upon  every  such  reference ;  that 
he  shall  have  full  authority  to  examine  the  parties  in  the  cause 
upon  oath,  touching  all  matters  contained  in  the  reference  ;  ^  and 
also  to  require  the  production  of  all  books,  papers,  writings,  vouch- 
ers, and  other  documents  applicable  thereto  ;  ^  and  also  to  examine 


kin,  or  other  persons  entitled  as  a  class,  so 
that  lit  the  hearinu'  it  is  uncertain  whether 
they  are  all  before  the  Court.  In  order 
to  remove  this  uncertainty,  a  reference  is 
made  to  the  master  to  ascertain  the  fact 
before  any  step  is  taken  for  ascertaining  or 
distributing  tlie  fund.  And,  on  the  same 
principle,  if  a  proposal  of  compromise  or 
of  arrangement  by  consent  is  made  where 
any  of  the  parties  are  infants  or  femes 
covert,  and  therefore  unable  to  exercise  a 
discretion,  the  Court,  before  sanctioning 
the  proposal,  will  ascertain  by  reference 
whether  it  is  for  their  benefit.  Fisk  v. 
Norton,  2  Hare,  381. 

'•  A  reference  for  the  tvorlcing  out  of  de- 
tails is  principally  made  in  matters  of  ac- 
count, when  the  Court  declares  that  the 
account  must  be  taken,  and  refers  it  to 
the  nuister  to  investigate  the  items.  Hart 
V.  Ten  Eyck,  i  Johns.  Ch.  518  ;  Consequa 
('.  Fanning,  3  lb.  591  ;  Barron  v.  Rhine- 
lander,  lb.  GU  ;  Maury  v.  Lewis,  10  Ycrg. 
115.  The  same  principle  applies  to  the 
investigation  of  the  vendor's  title  ;  for  the 
Court  cannot  undertake  to  peruse  the  ab- 
stract, but  will  devolve  that  duty  on  the 
master.  In  like  manner  it  will  be  referred 
to  a  master  to  ascertain  damages  in  a  bill 
for  specilic  performance,  when  the  defend- 
ant has  put  it  out  of  his  power  to  convey, 
Woodcock  I'.  Bcnnet,  1  Cowen,  711  ;  — to 
settle  conveyances  ;  to  superintend  sales  ; 
to  :i])point  trustees,  receivers,  guardians, 
&c.  ;  to  judge  of  the  impertineiicy  or  in- 
sutliciency  in  ])leadingsand  the  like. 

"  A  reference  to  xuDjtli/  failures  or  defects 
in  the  ividiure  is  made  when  the  evidence 
already  given  has  induced  a  belief  in  the 
Court  tliat  new  matter  mii,^lit  be  elicit^^d 
by  incjuiry,  or  where  allegations  have  been 
made,  in  the  answer,  though  not  established 
by  j)roof,  which,  if  true,  would  b(!  material 
in  the  cause."  Adam's  Doctrine  of  Eq. 
379  -  382.     Wharton's  notes.] 


1  Lunsford  v.  Bostion,  1  Dev.  Eq.  R. 
483  ;  Holden  v.  Hearn,  3  My.  &  K. 
445. 

2  Rules  for  Cirouit  Courts  in  Equity, 
Reg.  77. 

*  In  accounting  before  the  master,  the 
oath  of  the  party  is  not  to  be  admitted  a3 
evidence  to  support  items  in  an  account, 
which,  from  their  character,  admits  of  full 
proof  Ijy  vouchers,  or  other  legal  evidence. 
Harding  v.  Handy,  11  Wheat.  103,  127. 
As  to  the  master's  power  to  examine  par- 
ties, see  Seaton  on  Decrees,  11  ;  2  Dan. 
Ch.  Pr.  1360,  1366  [*  3d  Araer.  Ed.  1153] ; 
Hollister  v.  Barkley,  11  N.  H.  501.  Par- 
ties may  be  examined  toties  quotics,  at  the 
discretion  of  the  master ;  but  witnesses 
may  not,  without  an  order.  Cowslade  v. 
Cornish,  2  Vcs.  270 ;  Hart  v.  Ten  Eyck, 
2  Johns.  Ch.  513.  But  a  viva  voce  exami- 
nation of  the  party  does  not  alter  his 
rights ;  and  therefore  he  cannot  be  cross- 
examined  by  his  own  counsel ;  but  his 
answers,  when  responsive,  are  testimony, 
and  he  may  accompany  an  answer  by  any 
explanation,  fairly  responsive  to  the  inter- 
rogatory. Benson  v.  Le  Roy,  1  Paige, 
122.  Regularly,  a  special  order  is  ne- 
cessary to  empower  the  master  to  examine 
the  parties ;  but  if  this  is  omitted  in  the 
order  of  reference,  and  the  master  never- 
theless examines  a  party  on  oath,  without 
objection  at  the  time,  this  is  no  ground 
of  excei)lii)U  to  the  report.  Copeland  v. 
Crane,  9  Pick.  7.'!.  Before  the  master, 
co-defendants  may  examine  each  other ; 
Simmons  v.  Gutteridge,  13  Ves  262;  but 
it  .seems  that  co-plaintiffs  may  not.  Ed- 
wards V.  Cioodwin,  10  Sim.  123.  An  ex- 
amination, like  an  answer,  is  evidence 
against  none  but  the  party  examined.  2 
Dan.  Ch.  Pr.  1378  [*  3d  Amer.  Ed.  1174]  ; 
2  Smith,  Ch.  Pr.   135. 

*  See  Eng.   Orders   of   1828,  Ord.   60, 
72. 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS    OF   EVIDENCE. 


293 


on  oath,  vivd  voce,  all  witnesses  produced  by  the  parties  before 
him,  and  to  order  the  examination  of  other  witnesses  to  be  taken, 
under  a  commission  to  be  issued  upon  his  certificate  from  the 
clerk's  office,^  or  by  deposition  according  to  the  acts  of  Congress, 
or  otherwise,  as  hereafter  mentioned ;  and  also  to  direct  the  mode 
in  which  the  matters  requiring  evidence  shall  be  proved  before 
him  ;  and  generally,  to  do  all  other  acts,  and  direct  all  other  in- 
quiries and  proceedings,  in  the  matters  before  him,  which  he  may 
deem  necessary  and  proper  to  the  justice  and  merits  thereof,  and 
to  the  rights  of  the  parties.  This  summary  of  his  powers,  in  a 
general  rule  made  under  the  authority  of  an  act  of  Congress,  ren- 
ders any  special  enumeration  of  powers  in  an  order  of  reference 
wholly  superfluous.  And  the  course  of  proceeding  here  indicated, 
as  well  as  the  authority  given  to  the  master,  is  believed  to  be  in 
accordance  with  the  general  course  of  practice  in  the  State  tri- 
bunals. 

§  334.  Witnesses,  who  live  within  the  District,  may,  upon  due 
notice  to  the  opposite  party,  be  summoned  to  appear  before  the 
commissioner  appointed  to  take  testimony,  or  before  a  master  or 
examiner  appointed  in  any  cause,  by  subpoena,  issued  in  the  usual 
form  by  the  clerk  of  the  Court ;  and  if  a  witness  disobeys  the  sub- 
poena, or  refuses  to  give  evidence,  it  will  be  deemed  a  contempt 
of  the  Court,  which  being  certified  to  the  clerk's  office  by  the 
commissioner,  master,  or  examiner,  an  attachment  may  issue  by 
order  of  the  Court  or  of  any  Judge  thereof,  in  the  same  manner 
as  if  the  contempt  were  by  refusing  to  appear  or  to  testify  in  the 
Court.2 

§  335.  In  taking  accounts,  any  party,  not  satisfied  with  the 
account  brought  in  against  him,  may  examine  the  accounting  party 
vivd  voce,  or  upon  interrogatories  in  the  master's  office,  or  by 
deposition,  as  the  master  may  direct.^  All  affidavits,  depositions, 
and  documents,  which  have  been  previously  made,  read,  or  used 
in  Court  upon  any  proceeding  in  the  cause,  may  be  used  before  the 

1  See  Eng.  Orders   of  1 828,  Ord.  69 ;  have  recognized   the   rnle,  that   an   order 

Banford  v.  Banford,  2  Hare,  642  ;  Adams,  was  necessary  for  a  re-examination  before 

Doctr.  of  Equity  [382],  678.     It  has  been  the  master,  as  well  as  for  a  re-examination 

doubted,  whether,  under  the  Enjjlish  Order  before  the  hearing.     2  Dan.  Ch.  Pr.  1.394 

just  referred  to,  which  is  substantially  the  [*  3  Amer.  Ed.  1192]  ;  Rowley  v.  Adams, 

same  with  the  clause  in  the  text,  the  mas-  1  My.  &  K.  543. 

ter  could,  without  an  order,  examine  any  '^  Rules  for  Circuit  Courts    in    Equity, 

witness  vica  voce,  who  had  previously  been  Reg.  78. 

examined  in  the  cause  ;    but  in  one  case  ^  Idem,  Reg.  79.     And  see  Eng.  Orders 

the  Master  of  the  Rolls  seems  clearly  to  of  1828,  Ord.  61. 


294 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  VI. 


master;'^  and  he  may  examine  any  creditor  or  other  person  coming 
ill  to  claim  before  him,  either  upon  written  interrogatories,  or  vivd 
voce,  or  in  both  modes,  as  the  nature  of  the  case  may  seem  to 
require  ;  the  testimony,  thus  given,  being  taken  down  in  writing 
by  the  master,  or  some  other  person  by  his  order,  and  in  his  pres- 
ence, if  either  party  requires  it,  in  order  that  it  may  be  used  in 
Court,  if  necessary .2 


1  Idem,  Reg.  80.  And  see  Eng.  Orders 
of  1828,Ord.  65;  2  Dan.  Ch.  Pr.  1379  [*  3d 
Amcr.  Ed.  1175,  1176]  ;  Smith  v.  Althus, 
11  Vcs.  564.  But  the  answer  of  one  de- 
fendant cannot  be  nsed  before  the  master, 
as  an  affidavit,  against  another  defendant. 
Hoare  v.  Johnstone,  6  Keen,  553.  Nor 
can  ex  parte  affidavits  ordinarily  be  nsed 
before  him.  Cumming  v.  Waggoner,  7 
Paige,  603. 

'■^  Idem,  Reg.  81.  And  see  Enc  Orders 
of  1828,  Ord."  72;  2  Dan.  Ch.  Pr.  1379 
[*3d  Amer.  Ed.  1175].  The  subject  of 
examinations  before  a  master  was  fully 
considered  by  the  learned  Chancellor  Kent, 
in  Remsen  v.  Remsen,  2  Johns.  Ch.  495, 
500  -  502,  where  the  result  of  his  investi- 
gation is  stated  in  these  words :  "  The 
general  rules  which  are  to  be  deduced 
from  the  books,  or  which  ought  to  prevail 
on  the  subject  of  examinations  before  the 
master,  and  which  appear  to  me  to  be  best 
calculated  to  unite  convenience  and  de- 
spatch with  sound  principle  and  safety, 
are, 

"  1 .  That  the  parties  should  make  their 
proofs  as  full,  before  publication,  as  the 
nature  of  the  case  recpiires  or  admits  of, 
to  the  end  that  the  supplementary  ])roofs, 
before  the  master,  may  be  as  limited  as  the 
rights  and  responsibilities  of  the  parties 
will  admit. 

"  2.  That  orders  of  reference  should 
specify  the  ])riiici])les  on  which  the  accounts 
are  to  be  taken,  or  the  inquiry  proceed,  as 
far  as  the  Court  shall  have  decided  there- 
on ;  and  that  the  examinations  before  the 
master  should  be  limited  to  such  matters, 
witliin  tlie  limits  of  the  ordi'r,  as  the  ]mn- 
ciples  of  the  decree  or  order  may  render 
necessary. 

"  3.  That  no  witness  in  chief,  examined 
before  publication,  nor  the  parties,  ought 
to  be  examined  before  the  master,  without 
an  order  for  that  purjxisc,  which  order 
usually  sjxcilics  the  subject  and  extent  of 
the  examination ;  and  a  similar  order 
seems  to  be  requisite  when  a  witness,  once 
examined,  is  sought  to  be  again  examined 
before  the  nuuster,  on  the  same  matter. 
But  it  is  understood  to  be  the  settled  course 
of  the  Court,  1  Vern.  28.3,  (inon. ;  1  Vern. 
470,  Witcherly  v.   Witcherly ;  2  Ch.  Cos. 


249,  Everard  v.  Warren ;  Mosely,  252, 
Merely  v.  Bonge ;  Robinson  v.  Cumming, 
2  Atk.  409,  and  2  Fonb.  452,  460-162 
(see  also  O'Neil  v.  Hamill,  1  Hogan,  183), 
that  upon  the  defendant  accounting  before 
the  master,  he  is  to  be  allowed,  on  his  own 
oath,  being  credible  and  uncontradicted, 
sums  not  exceeding  forty  shillings  each; 
but  then  he  must  mention  to  whom  paid, 
for  what,  and  when,  and  he  must  swear 
positively  to  the  fact,  and  not  as  to  belief 
only  ;  and  the  whole  of  the  items,  so  estab- 
lished, must  not  exceed  .£100,  and  the  de- 
fendant cannot,  by  way  of  charge,  charge 
another  person  in  this  way.  The  forty 
shillings  sterling  was  the  sum  established 
in  the  early  history  of  the  Court,  and, 
perhai)s,  twenty  dollars  would  not  now  be 
deemed  an  unreasonable  substitute. 

"  4.  That  the  master  ought,  in  the  first 
instance,  to  ascertain  from  the  parties,  or 
their  counsel,  by  suitable  acknowledgments, 
what  matters  or  items  are  agreed  to  or 
admitted  ;  and  then,  as  a  general  rule,  and 
for  the  sake  of  precision,  the  disputed  items 
claimed  by  either  party  ought  to  be  re- 
duced to  writing  by  the  parties,  respec- 
tively, by  way  of  charges  and  discharges, 
and  the  requisite  proofs  ought  then  to  be 
taken  on  written  interrogatories,  prepared 
by  the  parties,  and  ajiproved  by  the  mas- 
ter, or  by  vivd  voce  examination,  as  the 
parties  shall  deem  most  expedient,  or  the 
master  shall  think  proper  to  direct,  in  the 
given  case.  That  the  testimony  may  be 
taken  in  the  presence  of  the  parties,  or 
their  counsel  (except  when  by  a  special 
order  of  the  Court  it  is  to  be  taken  secret- 
ly) ;  and  it  ought  to  be  reduced  to  writing, 
in  cases  where  the  master  shall  deem  it 
advisable,  by  him,  or  under  his  direction, 
as  well  where  a  party  as  where  a  witness 
is  examined. 

"  5.  That  in  all  cases  where  the  master 
is  directed  by  the  order  to  report  the  proofs, 
the  depositions  of  the  witii'.'sses  should  be 
reduced  to  writing  by  the  nnister,  and 
subscribed  by  the  witnesses,  and  the  dep- 
ositions returned  with  his  report  to  the 
Court. 

"  6.  That  when  an  examination  is  once 
begun  before  a  master,  he  ought,  on  as- 
signing a  reasonable  time  to  the  parties. 


PART  VI.]       SOURCES,  MEAN'S,  AND  INSTRUMENTS    OF    EVIDENCE. 


295 


§  836.  In  tlie  examiuation  of  witnesses  before  the  master,  it 
is  not  competent  for  him  to  examine  as  witnesses  any  persons  who 
have  previously  been  examined  in  the  cause,  without  leave  of  the 
Court.  This  rule  is  founded  on  the  same  reason  which  precludes 
the  re-examination  of  a  witness  before  the  hearing,  namely,  the 
danger  of  perjury,  which  might  be  incurred  from  allowing  a 
witness  to  depose  a  second  time  to  the  same  facts,  after  the  party 
adducing  him  has  discovered  the  weak  parts  of  the  proof  in  his 
cause.  And  for  the  same  reason,  when  leave  is  granted  for  the 
re-examination  of  a  witness  before  the  master,  it  is  generally 
granted  on  the  terms  of  having  the  interrogatories  settled  by  the 
master  ;  who,  in  so  doing,  will  take  care  that  the  witness  is  not 
re-examined  to  the  same  facts. ^  But  where  the  reason  of  the  rule 
fails,  the  rule  is  not  applied  ;  as,  for  example,  where  the  first 
examination  has  accidentally  failed,  by  reason  of  the  witness  hav- 
ing then  been  incompetent  from  interest,  which  has  since  been 
removed.2  So  where  a  witness,  previously  examined,  has  made 
affidavit  in  support  of  a  state  of  facts  before  the  master,  he  may  be 
examined  vivd  voce  before  the  master,  to  the  matter  of  his  affidavit.^ 
So,  where  the  previous  examination  was  confined  to  the  proof  of 
exhibits  at  the  hearing,  he  may  be  examined  before  the  master,  in 
proof  of  other  exhibits.*  But  if  a  witness,  who  has  been  once 
examined  to  the  matters  in  issue,  is  re-examined  before  the  master, 
without  a  special  order,  though  the  re-examination  be  to  matters 
not  before  testified  to  by  him,  it  is  an  irregularity,  and  has  been 
deemed  a  sufficient  cause  for  suppressing  the  second  deposition.^ 

to  pi-oceed,  with  as  little  delay  and  inter-  pursued  in  all  the  States,  where  it  is  not 

mission   as    the   nature   of  the   case   will  otherwise  regulated  by  special  rules, 
admit  of,  to  the  conclusion  of  the  exaini-         ^  2  Dan.  Ch  Pr.  1.383,  1384  [*  3d  Amer. 

nation,  and  when  once  concluded,  it  ouoht  Ed.    1180];    Vaughau    v.    Lloyd,    I    Cox, 

not  to  be  opened  for  further  proof,  without  312;  Whitaker  v.  Wright,  2   Hare,  321; 

special  and  very  satisfactory  cause  shown.  Sawyer  v.  Bowycr,  1  Bro.  Ch.  C.  388,  and 

"7.  That  after  the  examination  is  con-  cases  cited  in  Perkins's  note;  Jenkins  v. 

eluded,  in  cases  of  reference  to  take   ac-  Eldredge,  3  Story,  li.  299.  308,  309  ;  Gass 

counts,    or    make    inquiries,    the    parties,  v.  Stinson,  2  Sumner,  605. 

their  solicitors,  or  counsel,  after  being  pro-         '^  Sanford  v. ,  1  Ves.  398  ;  3  Bro. 

vided  by  the  master  with  a  copy  of  his  Ch.  C.  370,  S.  C. ;  Callow  v.  Mince,  2 

report  (and  for  which  the  rule  of  the  1st  Vera.  472. 

of  November  last  makes  provision),  ought         ^2    Dan.    Ch.    Pr.    1385;    Rowley  v. 

to  have  a  day  assigned  them  to  attend  be-  Adams,   1   My.  &  K.  543. 

fore  the  master,  to  the  settling  of  his  re-         *  Ibid. ;  Courtetiay  v.  Hoskins,  2  Russ. 

port,  and  to  make  objections,  in  writing,  253. 

if  any  they  have  ;    and  when  the  report  is         *  Smith  v.  Graham,  2  Swanst.  264.    But 

finally  settled  and  signed,  the  parties  ought  the  suppression  was  made  without  preju- 

to  be  confined,  in  their  exceptions  to    be  dice  to  any  application  for  the  re-examma- 

taken  iu  Court,  to  such  objections  as  were  tion  of  the  witness.     And  see  Grecnaway 

overruled  or  disallowed   by  the    master."  y.  Adams,  13  Ves.  360  ;    Vauuhan  ;•.  T.loyd, 

This  outline  of  practice  is'  believed  to  be  1  Cox,  Ch.  C.  312.     See  also  Jenkms  v. 


296  LAW  OF  evidencp:  in  equity.  [part  VI. 

To  the  case  of  witnesses  who  have  not  ah-eady  been  examined, 
this  rule  requiring  a  special  order  is  now  generally  understood 
not  to  ap{)ly  ;  for  it  is  said  that,  where  a  case  is  sent  to  a  master, 
for  inquiry  into  a  fact,  it  is  in  the  nature  of  a  new  issue  joined ; 
and  what  would  be  evidence  in  any  other  case  upon  that  issue, 
is  evidence  before  the  master ;  the  evidence  already  in  the  cause, 
upon  the  same  matter,  is  admissible  before  him,  and  otlier  wit- 
nesses, to  the  matter  referred,  may  also  be  examined,  as  of  course.^ 
But  the  rule  does  apply  to  the  re-examination  of  witnesses  who 
have  once  been  examined  before  the  master  to  the  same  facts,  it 
being  held  irregular,  except  upon  a  special  order .^ 

§  337.  A  third  mode  in  which  the  Court  obtains  further  infor- 
mation for  itself  is,  by  sending  ?i  feigned  issue  to  a  Court  of  Law, 
for  trial  hy  a  Jury.  It  will  be  recollected,  as  we  have  already 
seen,  that,  according  to  the  doctrine  of  Equity,  the  facts  are  final- 
ly found  by  the  Chancellor,  and  that,  of  course,  all  the  subordi- 
nate means  of  ascertaining  them,  and  verdicts,  among  the  rest, 
are  used  only  for  his  information,  and  not  imperatively  to  govern 
and  control  his  judgment.  Hence  it  is,  that  it  is  competent  and 
usual  for  him  to  order  the  terms  on  which  the  trial  shall  proceed, 
and  what  evidence  the  parties  shall  respectively  admit  or  adduce.^ 
Thus,  in  directing  an  issue,  the  Court  will,  in  its  discretion,  order 
the  parties  to  make  such  admissions  as  it  thinks  are  necessary  to 
raise  the  question  to  be  determined ;  that  they  produce  at  the  trial 

Eldredgc,  3  Story,  R.  299,  308,  309,  where  not  be  given   in   evidence ;   and   for  this 

the  general  rule  was  reviewed  and  acted  cause,   on   review,    the   Lord    Keeper    re- 

upon  by  Story,  J.     But  where  the  exam-  versed  the  decree.     In  Apthorp  v.  Com- 

ination  "before"  the  master  was  confined  to  stock,  2  Paige,  482,  where  the  genuineness 

points  collateral  to  the  matters  in  issue  at  of  a  deed  was  in  question,  the  Chancellor, 

the  hearing,  it  has  recently  been  held  that  in   directing   an   issue,   ordered    that    the 

an  order  was  not  a  necessary  prerequisite,  proof  of  the  execution  of  the  deed,  taken 

1  Hoffm.  Cii.  Pr.  538  ;  Swinford  v.  Home,  before  the  commissioner,  prior  to  its  regis- 

6  Madd.  379.     And  such,  it  seems,  had  tration,  and  which  entitled  it  to  be  read  at 

been  the  practice  for  more  than  a  century,  law,  should  not  be  received  at  the  trial  as 

as  appears  from  Medley  v.  Pearce,  West,  any  evidence  of  the  execution  of  the  deed, 

R.  128,  |)er  Ld.  Ilanlwicke.  or  of  the  genuineness  of  any  of  the  signa- 

1  Smith  V.  Altluis,  11  Vcs.  564;  Hough  turcs  upon   it;  to  which  order  no  excep- 

w.  "Williams,  3  Bro.   Ch.   C.   190;  Gass  v.  tiou  was  taken.    And  in  Elderton  v.  Lack, 

Stinson,  2  Sunm.  G05,  612.     But  sec  Wil-  2  Phil.  R.  t)80,  it  was  held  that,  where  the 

an  V.  Wilan,  1   Cooper,  Ch.  C.  291;  Iloff-  plaintiff 's  title  to  relief  in  Ivpiity  (lej)ended 

man's  Master  in  Chancery,  4.5,46.  on  a  legal  right,  the  Court  ought  not  to 

■■^  Remsen  v.  Remsen,  2  Johns.  Ch.  ."JOO ;  interfere  with  the  trial  of  that  right  in  a 

Cowslaile  r.  Cortiish,  2  Vez.  270.  Court  of  Law,  by  requiring  the  defendant 

8  Whether,  in  such  case,  the  parties  to  admit  any  fact  \q)oii  which  that  right 
ought  to  be  deprived  of  the  use  of  any  depended.  And  see  vSmitli  c.  E.  of  Effing- 
legal  evidence,  7»fi;;c ;  and  see  IJeachinail  ham,  10  Beav.  .589;  lUnited  Slates  o. 
V.  Bcachinall,  I  Veru.  240.  In  this  case  Samperyac,  1  Hemp.  IIS;  Ward  v.  Hill, 
Lord  Nottingham,  in  directing  a  trial  at  4  Gray,  .593;  Waterman  v.  Dutton,  5 
law,   ordered   that  a  certain  deed   should  Wis.  4 13. J 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  297 

any  books,  papers,  and  documents  in  their  possession,  power,  or 
control,  which  it  may  deem  useful  for  a  full  investigation  of  the 
matter  in  issue,  and  which,  as  we  have  heretofore  seen,  it  may  or- 
der in  the  principal  cause ;  ^  and  that  witnesses  who  have  deposed  in 
the  cause  may  be  examined  vivd  voce,  or  their  depositions  read  at 
the  trial ;  that  new  witnesses  shall  not  be  adduced,  without  suffi- 
cient previous  notice  of  their  names,  residences,  and  additions,  to 
enable  the  other  party  to  ascertain  their  character.  The  Court 
will,  also,  in  its  discretion,  designate  which  party  shall  hold  the 
affirmative  of  the  issue ;  will  order  that  the  trial  be  by  a  struck 
Jury,  if  either  party  desire  it,  and  the  justice  of  the  case  so  re- 
quires ;  and  will  impose  such  restrictions  upon  the  parties  as  will 
prevent  all  fraud  or  surprise  on  the  trial.^ 

§  338.  Whether  the  Court,  in  directing  an  issue,  has  a  right  to 
order  the  parties  themselves  to  he  examined,  without  their  consent,  is 
a  question  upon  which  there  appears  to  have  been  some  conflict  of 
opinion.  It  is  agreed  that  this  may  be  done  where  the  parties  are 
merely  nominal  or  fiduciary.  Where  the  facts  in  dispute  rest 
only  in  the  knowledge  of  the  parties,  or  where  oath  is  so 
balanced  by  oath  that  it  is  proper  fjr  a  Jury  to  weigh  their  cred- 
it,—  as,  for  example,  where  an  injunction  is  asked  for  upon  the 
affidavit  of  one  party,  and  opposed  upon  that  of  another,  and  an 
issue  is  in  consequence  directed, — it  is  also  considered  proper 
that  both  the  parties  themselves  should  be  examined.  In  such 
cases  they  are  not  considered  as  witnesses  for  themselves,  or  for 
each  other,  but  as  witnesses  for  the  Court,  to  satisfy  its  own  con- 
science.^ In  other  cases  such  examinations  liave  been  refused, 
unless  by  mutual  consent  and  subject  to  the  discretion  of  the 
Court ;  *  and  even  then  it  has  been  observed,  that  the  practice  of 
allowing  parties  to  be  examined  for  themselves  is  to  be  resorted  to 

1  See  supra,  §§  295  -  307.  also  that  such  farther  evidence   may  be 

2  2  Dan.  Ch.  Pr.  1296,  1297.  [*  3d  adduced,  indudhif,'  the  testimony  of  the 
Amer.  Ed.  1097].  See  Apthorp  v.  Com-  parties,  as  by  law  would  be  competent  on 
stock,  2  Paige,  482,  485,  for  a  precedent  of  the  trial  of  such  issues.  Clark  v.  Society, 
the  exercise  of  this  power  of  directing  the  44  N.  H.  Rep.  382.] 

course  of  the  trial,  mentioned  in  the  text.         ^  De    Tastet  v.  Bordenave,   1   Jac.  R. 

[The  feigned  issue  may  also  be  amended  516;   Dister,  ex  parte,   Buck's    Cas.   234. 

in  a  proper  case  and  upon  proper  applica-  And   see    Hepworth   v.    Heslop,   6   Hare, 

tion.     Waterman  v.  Dutton,  5  Wis.  413.]  622;  13  Jur.  384;  2  Dan.  Ch.  Pr.  1298; 

[*  Where  issues  are  awarded  in  a  suit  in  1    Hoffm.    Ch.   Pr.   505,  506 ;  Fletcher  v. 

Equity,  after  proofs  are  taken,  the  Court  Glcgg,  1  Young,  345. 

may,  in  its  discretion,  direct  that,  in  the         *   Howard    v.    Braithwaite,   1    V.   &  B. 

trialof  those  issues,  the  depositions  already  374;  Gardiner   v.    Rowe,    4    Madd.    236; 

taken  may  be  read,  unless  the  attendance  Hepworth  v.  Heslop,  supra. 
of  the  witnesses  is  actually  procured,  and 


298  LAW    OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

with  great  caution,  and  never,  unless  under  the  peculiar  circum- 
stances of  the  case,  justice  could  not  be  attained  without  it ;  and 
certainly  never,  wlien,  from  the  position  of  the  parties,  an  unfair 
advantage  would  be  given  by  it  to  one  over  the  other.  Thus, 
where  the  fact  in  issue  appeared  to  have  occurred  in  the  presence 
of  only  the  plaintiff  and  a  late  partner  of  the  defendants,  who  was 
since  dead,  an  examination  of  both  parties  was  held  improper,  as 
calculated  to  give  the  plaintiff  an  undue  advantage. ^  The  order 
for  the  examination  of  a  party  does  not  affect  the  character  or  weight 
of  his  evidence ;  it  only  removes  the  objection  which  arises  from  his 
being  a  party  in  the  cause.^ 

§  339.  Accordhig  to  the  course  of  the  Court  of  Chancery,  the 
trial  of  an  issue  directed  to  a  Court  of  Law  is  generally  conducted 
in  the  same  manner,  and  by  the  same  rules,  as  are  observed  in 
other  trials  at  law,  unless  the  Court  of  Chancery,  in  ordering  the 
issue,  has  given  different  directions.  In  those  States,  however,  in 
which  a  trial  by  Jury,  in  cases  in  Equity,  may  be  claimed  as  of 
rir/ht,  it  is  conceived  that,  in  the  absence  of  any  statute  expressly, 
or  by  clear  implication,  empowering  the  Court  to  impose  terms  on 
the  parties,  or  to  interfere  with  their  legal  rights  in  regard  to  the 
course  of  proceeding  in  the  trial,  no  such  power  could  lawfully  be 
exercised.^  But  where  no  such  right  of  the  parties  exists,  this 
power  of  the  Court  remains,  as  long  recognized  in  Chancery  pro- 
ceedings in  England,  with  the  modifications  which  have  been  adopt- 
ed here,  in  our  State  tribunals,  or  created  by  statutes.  But 
wliere  the  devisee  in  a  will  seeks  to  estabhsh  it  against  the  heir, 
tlie  invariable  course  of  Cliancery  requires  that  the  due  execution 
of  the  will  should  be  proved  by  the  examination  of  all  the  attest- 
ing witnesses  wlio  are  in  existence  and  cajnible  of  being  exam- 
ined ;  and  that  the  same  course  be  pursued  u|)on  the  trial  of  an 
issue  of  devisav'd  vel  non ;  except  in  the  cases  where,  by  tiie  rules 
of  evidence,  in  Courts  of  Law,  their  production  may  be  dispensed 

1  Piirkcr  V.  Morrcll,  2  Pliil.  45.3  ;  12  Jur.  it  is  conceived  that  the  power  of  the  Court, 

2.^.3.  as  a  Court  of  Chancery,  to  modify  tiie  ex- 

"  H()L^erson!'.WIiittin<;ton,l  Swanst.  39.  crcisc  of  the  ri^-lit,  is  taken  away.     It  is 

8  [*  Kratikliu  v.  Greene,  2  Allen,  522.]  only  where  the  trial  depends  on   the  pleas- 

In   Marston   v.  Bracket,  9  N.  Ilamp.  336,  ure"  of  the  Court  that  the  course  of  i)io- 

,345,  the  ri;;l,t  exercised  hy  the  Court  seems  ccediui;  can  he  tluis  moditicd.^   Cujus  est 

clearly    lo    liave    l)eeu    (ierived    from    the  f/,nv,  f/i/s  est  dispouere.  ■  [In  Ward  c.  Ilill, 

statute.     The  pr,ictice  on  X\\U  ])()int,  in  tiie  4  (iray,  593,  the  onlerin;:;  of  an  issue  to  a 

ditlerent  States,  is  various  and  unsettled.  Jury  in  a  suit  in   l^iuity,  upon  the  aj)pli- 

I?ut  where  the  ri;,dit  of  the  party  to  a  trial  cation  of  the  eonii)lainant,  was  held  to  be 

hy  Jury  is  ah.soluie,  and  uncontrolled  by  within  the  discretion  of  the  Court,  and  not 

any  constitutional  or  statutory  limitation,  open  to  exception.] 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  299 

with.  For  as  a  decree  in  support  of  the  will  is  conclusive  upon 
the  heir,  against  whom  an  injunction  would  be  granted,  if  he 
should  disturb  the  possession  after  the  decree,  it  is  held  to  be  rea- 
sonable that  he  should  have  the  opportunity  of  cross-examining  all 
the  witnesses  to  the  will,  before  his  right  of  trying  the  title  of  the 
devisee  is  taken  from  him.^ 

7.    EVIDENCE    ALLOWED    ON   SPECIAL   ORDER. 

§  340.  Another  mode  in  which  a  Court  of  Chancery,  in  the  ex- 
ercise of  its  discretion,  and  to  do  complete  justice  and  equity  upon 
the  merits,  will  administer  the  law  of  evidence  by  more  flexible 
rules  than  are  recognized  in  the  Common  Law,  is  apparent  in  the 
allowance  of  evidence  upon  special  order ;  which  is  done,  either  by 
admitting  some  kinds  of  evidence  which  it  would  be  inconvenient 
and  unreasonably  expensive  to  produce  in  the  regular  way  ;  or  by 
permitting  the  parties  to  supply  defects  and  omissions  of  proof  and 
to  give  explanatory  evidence^  at  later  stages  in  the  cause  than  the 
ordinary  rules  will  allow.  One  instance,  of  the  former  class,  is  in 
the  admission  of  vivd  voce  testimony  in  the  proof  of  exhibits  at  the 
hearing,  instead  of  requiring  proof  by  depositions,  in  the  ordinary 
course  ;  a  subject  which  we  have  already  considered,  in  another 
connection.^  Another  case  of  the  same  class,  was  where  the 
vouchers  in  support  of  an  account  were  impounded  in  the  Eccle- 
siastical Court,  which  does  not  give  up  anything  once  impounded  ; 
and  the  expense  of  having  the  officer  to  attend  the  master  would 
be  considerable  ;  in  which  case  the  Lord  Chancellor  directed  the 
master  to  allow  items  upon  vouchers,  which  it  should  be  verified 
by  affidavit  were  so  impounded.^  On  the  same  principle,  an  ac- 
count, kept  forty-nine  years  ago,  by  a  person  since  deceased,  was 
ordered  to  be  received  by  the  master  as  primd  facie  evidence  of 
the  particular  items  in  the  account  to  be  taken  by  him  pursuant 
to  the  prayer  of  the  bill ;  throwing  on  the  other  side  the  burden 
of  impeaching  them.* 

§  341.  Upon  special  order,  the  Court  will  permit  the  parties  to 
read  at  the  hearing  any  ansivers,  depositions,  or  other  proceedings, 
taken  in  another  cause,  and  this  without  requiring  a  foundation 
first  to  be  laid,  by  proving  the  bill  and  answer  in  the  cause  in 
which  the  depositions  or  other  subsequent  proceedings  were  taken. 

1  See  ante,  Vol.  2,  §  694,  and  the  cases         2  Supra,  §§  .308-310,  319. 
there  cited.     See  also  McGregor  v.  Top-         '^  Neilson  v.  Cordcll,  8  Ves.  146. 
ham,  3  H.  L.  Cas.  132.  *  Chalmcr  b.  Bradley,  1  Jac.  &  Walk.  65 


300  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

Complete  mutuality  or  identity  of  all  the  parties  lias  been  shown, 
in  a  previous  volume,  not  to  be  necessary  ;  it  being  sufficient  if 
the  point  or  matter  in  issue  were  the  same  in  both  cases,  and  the 
party  against  whom  the  evidence  is  offered,  or  those  under  whom 
he  claims,  had  full  power  to  cross-examine  the  witnesses.^  Nor 
is  it  necessary  to  this  end  that  the  parties  to  the  present  suit,  or 
those  whom  they  represent,  should  have  sustained  the  relations  of 
plaintiff  and  defendant  in  the  former  suit ;  it  is  sufficient  that  they 
were  parties  to  the  suit,  though  on  the  same  side.  The  reason  for 
this  was  given  by  Lord  Hardwicke,  who  observed  that  it  frequently 
happens  that  tliere  are  several  defendants,  all  claiming  against  the 
plaintiff,  and  also  having  different  rights  and  claims  among  them- 
selves ;  and  the  Court  then  makes  a  decree,  settling  the  rights  of 
all  the  parties  ;  but  that  a  declaration  for  that  purpose  could  not  be 
made,  if  the  decree  and  proceedings  could  not  afterwards  be  admitted 
in  evidence  between  the  defendants  ;  and  the  objection,  if  allowed, 
would  occasion  the  splitting  of  one  cause  into  several.^ 

§  342.  In  regard  to  depositions  taken  in  a  cross-cause^  it  is  requi- 
site that  the  witnesses  be  examined  before  publication  in  the  origi- 
nal cause  has  passed,  otherwise  the  depositions  are  liable  to  be 
suppressed.^  But  if  the  point  in  issue  in  both  cases  is  the  same, 
and  the  depositions  in  the  cross-cause  were  taken  before  either 
party  had  examined  witnesses  in  the  original  cause,  they  may  be 
read  in  the  latter  cause.*  And  depositions  taken  in  the  cross- 
cause,  to  matters  not  put  in  issue  by  the  original  cause,  may  be 
read,  notwithstanding  they  were  taken  after  publication  had  passed 
in  the  original  cause.^  On  the  same  principle,  where  depositions, 
taken  in  an  original  cause,  are  admitted  to  be  read  in  a  cross- 
cause,  such  parts  only  are  admissible  as  were  pertinent  to  the 
issue  in  the  original  cause.^ 

1  Ante,  Vol.  1,  §§  522,  523,  536,  553.  they    were    not    orii^in.-il    parties    to    the 

And    sec    Kade  v.  Linj^ood,   1    Atk.  204 ;  particuhir   suit    in    which    the    deposition 

Coke  V.  Fountain,  I   Vern.  413  ;  Ncvil  v.  was  taken.     Smith  v.  Lane,   12  S.  &  11. 

Johnson,  2  Virii.  447  ;  Miukwortii  v.  Ten-  80. 

rose,  1  Diek.  50;  Uiinii)hroys  r.  Ponsam,  ^  Askew  v.  The  Poulterer's  Co.,  2  Vez. 

1   My.  &  C.  580 ;  Kobcrts  »;.  Anderson,  3  89.     Hut  in  sucli  ease;  the  evidence  is  not 

Johns.  Ch.  371,376;  Dale  v.  Hosevelt,  1  conclusive.     Ihid.     And  see   Chaniley   v. 

Paijie,  35;   Payne  v.  Coles,  1    Mnnf.  373;  Lord  Diinsany,  2  Sch.  &  Lcf'r.  690,  710; 

Ilarrin^rton    r."  IIarrin;;ton,  2    How.  701  ;  2  Dan.  Cli.  Pr.  1013. 

Att'y-(iineial    v.    Davison,    McCl.   &    R.  »  Pascall  v.  Scott,  12  Siip.  550. 

160.    Where  suits  between  several  parties,  *   Wiltord    v.    Bea.sely,    3    Atk.    501;   2 

who  arc  not  the  same  in  each  suit,  are  Dan.  ("h.  Pr.  1011;  Christian  v.  Wrenn, 

consolidated  and  tried  at  once,  by  mutual  Punb.  321. 

agreement,  it  seems  that  dcjiositions  taken  ^   Ibid. 

in  one  of  the  suits  may  I)e  admitted  on  the  *  Undcrhill  v.  Van  Cortlandt,  2  Johns, 

trial,  against  any  of  the  parties,  though  Ch,  339. 


PART  VI.]       SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  301 

§  843.  In  the  exercise  of  the  same  liberal  discretion,  evidence 
taken  in  the  Exchequer  has  been  allowed  to  be  read  between  the 
same  parties,  litigant  in  Chancery.^  So,  of  an  examination  in  the 
Admiralty  Court?  And  depositions  taken  by  the  defendant  in  a 
suit  which  was  afterwards  dismissed  by  the  complainant,  may  be 
read  in  a  subsequent  suit  between  the  same  parties,  for  the  same 
cause,  where  the  same  witnesses  cannot  again  be  had.^  So,  if  a 
deposition  taken  de  bene  esse,  is  read  at  the  hearing  when  it  might 
have  been  effectually  objected  to  for  irregularity,  and  an  issue  is 
afterwards  directed,  it  is  of  course  to  order  it  to  be  read  at  the 
trial  notwithstanding  the  irregularity.* 

§  344.  The  evidence  of  parties  and  of  interested  witnesses  also, 
will  sometimes  be  allowed  on  special  order  in  Equity  where  it  is 
found  essential  in  order  to  detect  and  reach  a  fraudulent  transaction, 
or  to  discover  the  true  and  real  intention  of  a  trust  or  use,  declared 
in  a  deed.  Tims,  upon  an  allegation  that  the  defendant's  title  to 
the  estate  in  question  was  fraudulent,  the  plaintiff  was  permitted 
to  read  the  deposition  of  Mrs.  Haughton,  the  defendant's  grantor, 
to  impeach  her  title  to  the  estate,  and  to  show  that  it  was  only  a 
pretended  title,  done  with  no  other  view  than  to  assist  the  defend- 
ant in  carrying  on  a  fraud.^  So,  a  trustee,  having  the  legal  inter- 
est in  the  estate,  but  being  merely  nominal  in  every  other  respect, 
may  be  examined  as  a  witness  in  Equity,  as  to  the  merits  or  inten- 
tion of  the  trust  title  ;  though  it  is  otherwise  at  Law.^  So,  in  the 
case  of  a  fraudulent  abstracting  of  the  plaintiff^s  money  or  goods 
by  the  defendant,  a  Court  of  Equity  will  admit  the  plaintiff"s  own 
oath  as  to  the  extent  or  amount  of  his  loss,  in  odium  spoliatoris  ; 
while  at  Law,  this  rule,  though  in  several  cases  it  has  been  freely 
admitted,  as  a  rule  of  necessity,  yet  has  sometimes  been  ques- 
tioned.'^ In  directing  an  account,  also,  the  Court  will  sometimes 
direct  it  to  be  taken  with  the  admission  of  certain  documents  or 
testimonies,  not  having  the  character  of  legal  evidence.  In  cases 
of  this  sort,  a  distinction  is  made,  upon  the  following  principle 
laid  down  by  Lord  Eldon.     If  parties  have  been  permitted,  for  a 

1  Maffrath  v.  Veitch,  1  Hog:.  127.    And     171,  n. ;  Fry  v.  Wood,  1  Atk.  445  ;  Coker 
see  W^illiams  v.  Broadhead,  1  Sim.  151.  v.  Farwell,  2  P.  Wms.  563;  Carrington  v. 

2  Watkins  v.  Fursland,  Toth.  192.  Carnock,  2  Sim.  567. 

s  Hopkins  v.  Stramp,  2  H.  &  J.  301.  &  Man  v.  Ward,  2  Atk.  228. 

*  Gordon   v.    Gordon,    1    Swanst.    166.  ''  2  Atk.  229,  per  Lord  Hardwicke. 

The  death  of  the  witnesses,  or  their  ab-  "^  Childrens    v.    Saxby,    1    Vern.   207. 

sence  beyond  the  reach  of  process,  seems  See  ante,  Vol.  1,  §  348,  and  cases  there 

to  be  requisite  in  such  cases.     1  Swanst.  cited. 


302  LAW    OF    EVIDENCE   IN   EQUITY.  [PART  VI 

long  course  of  years,  to  deal  with  property  as  their  own  ;  consid- 
ering themselves  under  no  obligation  to  keep  accounts  as  though 
there  Avas  any  adverse  interest,  and  having  no  reason  to  believe 
that  the  property  belongs  to  another  ;  though  it  would  not  follow 
that,  being  unable  to  give  an  accurate  account,  they  should  keep 
the  property  ;  yet  the  account,  in  such  cases,  would  be  directed, 
not  according  to  the  strict  course,  but  in  such  a  manner  as,  under 
all  the  circumstances,  would  befit.  But,  where  both  parties  knew 
that  the  property  was  the  subject  of  adverse  claim,  and  those  who 
desired  to  have  the  rules  of  evidence  relaxed  had  undertaken  that 
there  should  be  no  occasion  for  deviating  from  the  strict  rule,  but 
that  there  should  be  clear  accounts,  and  that  the  other  party 
should  have  his  property  without  hazard  of  loss  from  the  want  or 
the  complication  of  accounts,  the  case  is  then  widely  different ; 
and  a  previous  direction  to  the  master  to  receive  testimony  not 
having  the  character  of  legal  evidence,  would  introduce  a  most 
dangerous  principle.^ 

§  345.  A  more  frequent  occasion  for  a  special  order  for  the 
admission  of  evidence  out  of  course,  arises  when  such  evidence 
is  necessary  to  supply  defects  or  omissions  in  the  proofs  already 
taken,  and  discovered  before  the  final  hearing.  These  are  either 
discovered  and  become  material  in  consequence  of  something 
unexpectedly  occurring  in  the  course  of  the  proceedings  ;2  or  they 
happened  by  accident,  or  from  inadvertence.  In  the  former  case, 
relief  is  usually  given  by  leave  to  file  a  supplemental  bill,  or  a  bill 
of  review,  or  a  supplemental  answer,  and  to  adduce  evidence  in 
its  support.  But  the  course  of  the  Court,  as  we  have  already  had 
occasion  to  observe,  requires  that,  as  far  as  practicable,  the  exami- 
nation of  every  witness  should  be  taken  at  one  sitting,  and  without 
interruption  ;  and  that  after  the  witness  has  signed  his  deposition, 
and  "  turned  his  back  upon  the  examiner,"  no  opportunity  should 
be  given  for  tampering  with  liim,  and  inducing  him  to  retract, 
contradict,  or  ex))lain  away,  in  a  second  examination,  what  he  has 
already  stated  in  tlie  first.     This  rule,  however,  is  not  universally 

1  Lupton  r.  White,  15  Vos.  443.  prove  handwritiiip:,  but,  on  cxsiniination, 
-  Wlicre  !in  old  ))MptT-\vritinLr,  material  both  declared  their  disbelief  of  it,  the  par- 
in  the  eaus(<,  was  dise<jvered  after  publica-  ty  was  permitted  to  examine  other  wit- 
tion,  and  was  not  provable,  viva  voce,  ns  ncsses  to  tiiat  point,  sinec  the  previous  ex- 
an  exhibit,  leave  was  f^ranted  to  prove  it  amination  furnished  no  reason  why  this 
upon  interroiratories  and  a  eommission.  should  not  be  done.  Greenwood  v.  Par- 
Clarke  V.  Jeiiiiin;;s,  1  Anstr.  17.'J.  So,  sons,  2  Sim.  299. 
where  two   witnesses  were  relied   upon  to 


PART  VI.J       SOURCES,  MEANS,  AND   INSTRUMENTS    OF   EVIDENCE. 


303 


imperative  ;  for  it  seems  that  leave  to  re-examine  a  witness,  even 
before  publication,  will  bo  granted,  whenever  the  grounds  of  the 
motion  for  that  purpose  are  such  as  would  support  an  application 
for  a  bill  of  review  ;  or,  more  generally  speaking,  that  an  excep- 
tion to  the  rule  will  be  admitted,  whenever  the  special  circum- 
stances render  it  necessary,  for  tlie  purposes  of  justice,  to  make 
one.i  But  generally,  a  special  order  for  the  re-exarnination  of  a 
witness,  for  the  purpose  of  supplying  a  defect  in  his  former  exami- 
nation, will  not  be  made  until  publication  has  passed  in  the  cause ; 
for  the  propriety  of  granting  the  application  cannot  readily  be  seen, 
without  inspecting  the  depositions  already  taken.^  Yet  in  special 
cases,  where  a  clear  mistake  was  capable  of  specific  correction  by 
reference  to  documents  and  other  writings,  this  lias  been  permitted, 
before  publication  ;  the  re-examination  being  restricted  to  tliat 
alone.3  The  order  for  the  re-examination  of  a  witness  is  always 
founded  upon  one  or  the  other  of  the  grounds  before  mentioned, 
namely,  accident  or  surprise ;  and  the  rule  is  the  same,  whether 
he  is  to  be  re-examined  before  the  hearing,  or  upon  a  reference  to 
the  master,  the  reasons  in  both  cases  being  the  same.* 

§  346.  Where  depositions  have  been  suppressed  on  account  of 
some  accidental  irregularity,  either  in  the  conduct  of  the  cause,  or 
in  the  examination  of  the  witnesses,  the  Court,  in  its  discretion, 
will  permit  a  re-examination  of  the  witnesses,  upon  the  original 
interrogatories,  if  they  were  proper,  or  upon  fresh  ones,  if  they 
were  not.^  So,  ivliere  the  loitness  has  made  a  mistake  in  his  testi- 
mony,^ or  has  omitted  to  answer  some  parts  of  the  interrogatories,' 
or,  the  examiner  has  omitted  to  take  down  or  has  erroneously  taken 
down  some  part  of  his  answer;^  and  in  other  like  cases,  where  the 
defect  of  evidence   has  resulted   from  accident   or  inadvertence ; 

1  2  Dan.  Ch.  Pr.  1150  [*3d  Araer.  Ed.  &  2  Dan.  Ch.  Pr.  1147,  1148,  1150  [*3d 

970] ;  Cockerill  v.  Cholmelev,  3  Sim.  313,  Amer.  Ed  970] ;  Woody.  Mann.  2  Sumn. 

315;  Rowley  v.  Adams,  1   Mv.  &  B.  543,  316,   323.     And   see   Carre  v.    Bowyer,  3 

545,'  per    Sir  J.  Leach,  M.  R.     And  see  Swanst.  357 ;  Healey  v.  Jagger,   3  Sim. 

Hal'lock    V.    Smith,    4   Johns.    Ch.    6.50;  494. 

Beach  v.  Fulton  Bank,  3  Wend.  573,  580  ;  «  Bryne  v.  Frere,  1   Moll.  396  ;  Turner 

Harmersly  v.  Lambert,  2  Johns.  Ch.  432  ;  v.  Trelawney,  9   Sim.  453. 

Gray  v.  Murray,  4  Johns.  Ch.  412.  "  Potts  v.  Curtis,  1  Younge,  343. 

•^  2  Dan.  Ch.  Pr.  1 153  [*3d  Amer.  Ed.  *  Bridge  v.  Bridge,  6  Sim.  352  ;  Kings- 

972].     See  also  Ld.  Abergavenny  v.  Pow-  ton  Trustees  v.  Tappen,  1  Jolins.  Ch.  368. 

ell,    1    Meriv.    130,    131,  per  Ld.  Eldon  ;  If  the  omission  was  through  "the  culpable 

Stanney  v.   Walmsley,   1   My.   &  C.  361,  negligence  or  inattention  of  the  party  or 

per  Ld.  Cottenham.  his  counsel,  a  i-e-examination  will  be  refused. 

3  Kirk   y.  Kirk,  13   Ves.  280;  Id.   285,  Healey  t;.  Jagger,  sxpra ;  Asbee  y.  Shipley, 

S.  C,  per  Ld.  Erskine.  5  Madd.  467  ;  Ingram  v.  Mitchell,  5  Ves. 

*  Supra,  §  336  299. 


30i 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  \l 


leave  to  supply  the  defect  and  correct  the  error,  by  a  re-examina- 
tion of  the  witness,  will  be  granted  ;  the  re-examination  being 
restricted  to  the  supply  of  the  defect,  or  the  correction  of  the  error, 
without  retaking  any  other  parts  of  the  testimony,  unless  the 
entire  original  deposition  has  been  suppressed.^  The  ordinary 
metliod  of  showing  to  the  Court  the  fact  and  circumstances  of  the 


1  See  Hood  V.  Pimm,  4  Sim.  101. 
"  There  is,"  said  the  Vice-Chancellor  of 
Enji'land,  "  an  abundance  of  cases  tx)  show 
that,  uniformly,  from  the  earliest  times. 
Courts  of  Equity  have  relieved  against 
mere  errors  of  examiners,  commission- 
ers, witnesses,  solicitors,  and  counsel,  and, 
when  there  has  been  an  accidental  defect 
in  evidence,  have,  before  the  hearing,  at 
the  hearing,  and  at  the  rehearing  of  a 
cause,  allowed  the  defect  to  be  supplied. 
In  Bloxton  c.  Drewit  (Free,  in  Chan.  64), 
an  order  was  made  to  jn-ove  a  deed  viva 
voce.  It  turned  out  that  the  attesting  wit- 
nesses were  dead,  and  leave  was  given,  at 
the  hearing,  to  prove  the  deed.  In  Spence 
V.  Allen  (ibid.  49.3),  after  depositions  had 
been  suppressed,  because  they  were  lead- 
ing, which  was  the  error  of  counsel,  leave 
was  given  to  lile  new  interrogatories  ;  and 
a  similar  leave  was  jriven  in  the  case  of 
Lord  Arundel  v.  Pitt  (Amb.  .585).  In  the 
case  of  Griells  v.  Gansell  (2  P.  Wms.  646), 
a  deposition  has  been  taken  erroneously, 
by  the  examiner,  or  through  mistake  of 
the  witness,  and  leave  was  given  to  correct 
the  mistake.  And  in  two  instances,  in 
the  case  of  Kirk  v.  Kirk  (13  Ves.  280- 
285),  where  witnesses  had  made  mistakes, 
the  mistake  was  corrected,  in  one  in- 
stance, on  the  application  of  the  defend- 
ant ;  in  the  other,  on  the  application  of 
the  witness.  In  Shaw  r.  Lindsey  (15  Ves. 
380),  and  in  Ferry  v.  Fisher  (Ibid.  382), 
there  cited,  the  Court  relieved  against  the 
error  of  commissioners  in  taking  deposi- 
tions ;  and,  though  it  suppressed  the  er- 
roneous depositions,  directed  the  witnesses 
to  be  examined  (jver  again.  In  Lord  Cliol- 
inondeley  v.  Eord  ciinton  (2  Mer.  81), 
where  the  intention  was  to  examine  wit- 
nesses properly,  and,  by  mistake  of  the 
solicitor,  an  error  haj)])enL'd,  tfic  Court  re- 
lieveil  ;  and  Lord  Klihui  said  be  was  clear 
the  Court  had  an  undoubted  right  to  rec- 
tifv  a  mere  sliji  in  its  proceedings.  Ixjrd 
Kldon  indeed  says,  in  Willan  v.  Willan 
(19  Ves.  590),  'after  publication,  previous 
to  a  decree,  you  cannot  examine  witnesses 
further,  witliout  great  dilHculty,  and  the 
examination  is  generally  eontincd  to  some 
particular  facts.'  lint"  this  shows  Lord 
Eldon's  opinion  that  leave  might  be  given 
in  a  proper  case.  In  Wallace  v.  Hodgson 
(2   Atk.    56;    1    Kuss.    526,   note),    Lord 


Hardwicke,  after  he  had  gone  through  the 
hearing  of  a  cause,  postponed  it,  and  gave 
leave  to  exhibit  interrogatories  to  prove  the 
sanity  of  the  testator.  It  appears,  from 
the  report  (2  Atk.  56),  that  he  thought 
it  a  mere  matter  of  form.  In  Bank  v. 
Farquharson  (Amb.  145;  S.  C.  1  Dick. 
167),  Lord  Hardwicke,  before  the  hearing 
of  a  cause,  adjourned  it,  in  order  that  a 
deed  uiii^ht  be  proved,  which  could  not  be 
proved  merelv  as  an  exhibit.  In  Sand- 
ford  1-.  Paul  ('3  Bro.  370),  Lord  Thurlow, 
on  motion  before  the  hearing,  where  a 
mistake  had  happened,  allowed  a  witness, 
wlio  had  been  examined,  to  be  re-examined. 
In  the  Attorney-General  v.  Thurnall  (2 
Cox,  2),  on  motion  at  the  hearing,  leave 
was  given  to  enter  into  further  evidence, 
so  as  to  let  in  the  copy  of  a  will.  In 
Walker  v.  Symonds  (1  Mer.  37,  n.),  leave 
was  given,  on  a  rehearing,  to  read  exhibits 
not  proved  at  the  hearing.  In  Cox  v. 
Allingham  (Jae.  337),  upon  petition,  after 
the  hearing,  leave  was  given  to  enter  into 
new  evidence  as  to  the  loss  of  a  deed,  so  as 
to  let  in  evidence  of  a  copy.  In  Moons  v. 
DeBernales  (1  Russ.  307),  and  Abrams  v. 
Winshup  (1  Russ.  526),  upon  application 
in  the  course  of  the  hearing,  leave  was 
given  to  enter  into  further  evidence  as  to 
the  death  of  a  person,  and  the  sanity  of  a 
testator ;  and  in  Williams  v.  Goodchild  (2 
Russ.  91),  Lord  lildon  expressed  an 
opinion  tliat,  on  a  rehearing  upon  special 
application,  new  evidence  might  be  re- 
ceived. In  Williamson  v.  Ilutton  (9 
Price,  187),  the  Court  of  Exchequer  per- 
mitted a  rehearing  on  the  ground  of  new 
evidence  discovered  since  the  hearing, 
and  gave  leave,  not  merely  to  prove  cx- 
liibits  viva  voce,  but  to  exhibit  interroga- 
tories to  prove  them.  In  Coley  v.  Coley 
(2  You.  &  Jerv.  44),  the  Clncf  Baron, 
when  the  cause  was  set  down  for  hearing, 
gave  leave,  on  motion,  to  examine  two  fur- 
ther witnesses  to  a  will,  when  one  only 
had  been  examined  ;  and  though  in  Wyld 
V.  Ward  (2  You.  &  Jerv.  381),  he  would 
not  allow  proof  of  the  lease  at  the  rehear- 
ing, unless  it  could  be  proved  as  an  ex- 
hibit, his  reason  seems  to  have  been,  that 
he  thought  the  omission  to  prove  it  at  the 
hearing  arose  from  mere  neglect ;  not  ac- 
cident, but  blamable  neglect."  4  Sim. 
110-113. 


PART  VI.]      SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  305 

mistake  is  by  the  affidavit  of  the  witness  ;  but  this  may  also 
appear  from  the  certificate  of  the  commissioner  or  magistrate, 
or  upon  the  face  of  the  deposition,  or  otherwise  ;  for  the  Court, 
when  once  it  has  knowledge  of  the  fact,  will  act  upon  it,  in  whatso- 
ever manner  that  knowledge  may  have  been  obtained.^ 

§  347.  Sometimes,  in  cases  of  a  clear  mistake,  involving  only 
a  verbal  alteration,  the  Court,  instead  of  ordering  a  re-examination 
of  the  witness,  will  permit  the  deposition  to  he  amended  in  open 
Court.  This  has  been  done  by  the  alteration  of  a  date,  stated  by 
the  witness  by  mistake  ;  ^  by  the  correction  of  a  mistake  of  the  ex- 
aminer ;  3  especially  where  the  witness  was  aged  and  very  deaf ;  * 
where  the  name  of  the  party  defendant  was  mistaken  in  the 
interrogatories  ;  ^  and  in  other  like  cases  ;  the  mistake  being 
first  clearly  shown  and  proved  to  the  entire  satisfaction  of  the 
Court.^ 

§  348.  Another  case,  in  which  evidence  will  be  allowed  to  be 
taken  out  of  the  ordinary  course,  and  upon  special  order,  is,  to  im- 
peach the  credit  of  witnesses  who  have  already  been  examined.  To 
obtain  an  order  for  this  purpose,  it  is  necessary  that  "  articles  " 
first  be  filed,  charging  the  bad  character  of  the  witness  in  point  of 
veracity  whose  credit  it  is  intended  to  impeach,  and  stating  the 
general  nature  of  any  disparaging  facts  which  it  is  intended  to 
prove.'^  The  object  for  which  the  articles  are  required  is,  to  give 
notice  to  the  adverse  party  whose  witnesses  are  to  be  objected  to, 
that  he  may  be  prepared  to  meet  the  objection.  And  as  it  is  a 
rule  of  Chancery  Practice,  that  witnesses  are  not  to  be  examined 
to  any  matters  not  put  in  issue  by  the  pleadings,  and  as  the  char- 
acter of  a  witness  cannot  in  that  manner  be  put  in  issue,  it  is  obvious 
that  any  examination,  as  to  the  character  of  a  witness,  would  be 
impertinent  to  the  issue,  and  therefore  must  be  suppressed,  unless 
it  were  previously  allowed,  upon  motion  and  a  special  order .^  The 
order  usually  directs,  that  the  party  be  at  liberty  to  examine  wit- 
nesses as  to  credit,  and  as  to  such  particular  facts  only  as  are  not 
material  to  what  is  in  issue  in  the  cause  ;  and  under  it  the  party 

1  Shaw  V.  Lindsey,    15   Ves.   381,  per  ^  Currc  y.  Bowyer,  3  Swanst.  357. 
Lord  Eldon.     And  see  Kirk  v.  ffirk,  13  ^  Rowley  v.  Kidley,  supra ;  Darling  v. 
"^es.  285.  Staniford,  "l  Dick.  358.     And  see  Kenny 

2  Rowley  v.  Eidley,  1  Cox,  Ch.  C.  281 ;  v.  Dalton,  2  Moll.  386. 

2  Dick.  677,  S.  C.  7  Sce  2  Dan.  Ch.  Pr.  1158,  1159  [*3d 

3  Griells  v.  Gansell,  2  P.  Wms.  646.  Amer.  Ed.  976,  977],  for  the  form  of  the 
And  see  Ingram  v.  Mitchell,  5  Ves.  297 ;  articles.  See  also  1  Hoffin.  Ch.  Pr. 
Penderil  v.  Penderil,  W.  Kely,  25.  489. 

*  Denton  v.  Jackson,  1  Jolins.  Ch.  526.         »  Mill  v.  Mill,  12  Ves.  406. 
VOL.  III.  20 


SOG 


LAW    OF   EVIDENCE   IN   EQUITY. 


[part  VL 


may  examine  witnesses  as  to  the  general  reputation  of  the  wit- 
ness who  is  impeached,  and  may  also  contradict  him  as  to  par- 
ticular facts,  not  material  to  the  issue,  and  may  prove  previous 
declarations  of  the  witness,  contrary  to  what  he  afterwards  tes- 
tified on  his  examination.^     No  interrogatory  is  permitted,  as  to 


1  2  Dan.  Ch.  Pr.  1160, 1161  [*.3(1  Amer. 
Ed.  978,  979]  ;  Vaughan  v.  Worrall,  2 
Swanst.  .395,  and  cases  cited  aiy.  by  Sir 
Samuel  Koniilly.  The  doctrine  on  this 
subject  was  reviewed  by  Chancellor  Kent, 
in  Troup  v.  Sherwood,  3  Johns.  Ch.  562  - 
565  ;  and  was  recognized  and  briefly  ex- 
pounded by  Mr.  Justice  Story,  in  Wood  v. 
Mann,  2  Sumn.  321  ;  and  afterwards  more 
particularly  in  Gass  v.  Stinson,  Id.  605. 
"  The  general  course  of  practice,"  he  ob- 
serves, "  is  that,  after  publication  has 
passed  of  the  depositions  (though  it  may  be 
before),  if  cither  party  would  object  to  the 
competency  or  credibility  of  the  witnesses, 
whose  depositions  are  introduced  on  the 
other  side,  he  nmst  make  a  special  applica- 
tion by  petition  to  the  Court,  for  liberty  to 
exhibit  articles,  stating  the  facts  and  objec- 
tions to  the  witnesses,  and  praying  leave  to 
examine  other  witnesses,  to  establish  the 
truth  of  the  allegations  in  the  articles  by 
suitable  proofs.  Without  such  special  or- 
der, no  such  examination  can  take  place  ; 
and  this  luis  been  the  settled  rule  ever 
since  Lord  Bacon  promulgated  it  in  his 
Ordinances.  (Urd.  72.)  Upon  such  a 
petition  to  file  articles,  leave  is  ordinarily 
granted  l)y  the  Court,  as  of  course,  unless 
there  are  special  circumstances  to  prevent 
it.  There  is  a  difference,  however,  be- 
tween objections  taken  to  the  coin])etency 
and  tlio.sc  taken  to  the  credibility  of  wit- 
nesses. Where  the  objection  is  to  com- 
petency, the  Court  will  not  grant  the  ap- 
plicatifm  after  jniblication  of  the  testimonj^ 
if  the  incompetency  of  the  witness  was 
known  before  the  commission  to  take  his 
deposition  was  issued  ;  for  an  interrogatory 
might  then  have  been  put  to  him,  directly 
on  the  j)oiiit.  lint,  if  the  objection  was 
not  then  known,  the  Court  will  grant  the 
ajjplication.  This  was  the  doctrine  assert- 
ed by  Lord  Ilardwicke,  in  t'allaghan  v. 
Koclifort  (.-J  Atk.  R.  643),  and  it  has  been 
constantly  adlmred  to  ever  since.  The 
proper  mode,  indeed,  of  making  the  ap- 
plication, in  such  Ciuse,  seems  to  have  been 
thought  by  the  same  great  Judge  to  be, 
not  by  exhibiting  articles,  but  by  motion 
for  leave  to  cxatnine  the  matter,  upon  the 
foundation  of  ignorance  at  the  time  of  the 
examination.  13ut,  upon  i)rincii)le,  there 
docs  not  seem  to  be  any  objection  to  either 
course;  though  the  exhibition  of  articles 
would  seem  to  bo  more  formal,  and,  per- 


haps, after  all,  more  convenint  and  certain 
in  its  results.  But  where  the  objection  is 
to  credibility,  articles  will  ordinarily  be  al- 
lowed to  be  filed  by  the  Court  upon  peti- 
tion, without  affidavit,  after  publication. 
The  reiison  for  the  difference  is  said  by 
Lord  Hardwicke,  in  Callaghan  v.  Rochfort 
(3  Atk.  11.  643),  to  be,  because  the  matters 
examined  to  in  such  cases  are  not  material 
to  the  merits  of  the  cause,  but  only  relative 
to  the  character  of  the  witnesses.  And, 
indeed,  until  after  publication  has  passed, 
it  cannot  be  known  what  matters  the  wit- 
nesses have  testified  to ;  and,  therefore, 
whether  there  was  any  necessity  of  exam- 
ining any  witnesses  to  their  credit.  This 
latter  is  the  stronger  ground  ;  and  it  is  con- 
firmed by  what  fell  from  the  Court  in  Pur- 
cell  V.  McNamara  (8  Ves.  II.  324).  When 
the  examination  is  allowed  to  credibility 
only,  the  interrogatories  are  confined  to 
general  interrogatories  as  to  credit,  or  to 
such  particular  facts  only  as  are  not  mate- 
rial to  what  is  already  in  issue  in  the  cause. 
The  qualification  in  the  latter  case  (which 
case  seems  allowed  only  to  impugn  the 
witness's  statements,  as  to  collateral  facts), 
is  to  prevent  the  party,  under  color  of  an 
examination,  to  credit,  from  procuring  tes- 
timony to  overcome  the  testimony  already 
taken  in  the  cause,  and  ])ublished,  in  vio- 
lation of  the  fundamental  princi])le  of  the 
Court,  which  does  not  allow  any  new  evi- 
dence of  tlie  facts  in  issue  after  publication. 
The  rule  and  the  reasons  of  it  are  fully  ex- 
pounded in  Purcel  i'.  McNamara  (8  Ves. 
n.  324,  326)  ;  Wood  v.  Hammerton  (9  Vos. 
R.  145)  ;  Carlos  v.  Brock  (10  Ves.  R.  49, 
50)  ;  and  White  r.  Fussell  ( 1  Ves.  &  Beam. 
R.  151 ).  It  was  rccognizeil  and  enforced  by 
Mr.  Chancellor  Kent,  in  Troup  v.  Sher- 
wood (3  Johns.  Ch.  R.  558,  562-565). 
When  the  examination  is  to  general  credit, 
the  course  in  England  is,  to  ask  the  (jues- 
tion  of  the  witnesses,  whether  they  would 
believe  the  party  sought  to  be  discredited 
u|>on  his  oath.  With  us  the  more  usual 
course  is,  to  discredit  the  i)arty  by  an  in- 
(juiry  what  his  general  rejmtation  for  truth 
is  ;  whether  it  is  good,  or  whether  it  is 
bad."  2  Sumn.  fiOS -6J0.  And  see  Pig- 
gott  V.  Coxhall,  1  Sim.  &  Stu.  467.  This 
course,  in  its  stri<tncss,  is  conceived  to  ap- 
ply only  in  those  Courts  whose  practice  is 
similar  to  that  formerly  in  use  in  the  lligh 
Court  of  Chancery  in  England. 


PART  VI.]      SOURCES,  MEANS,  AND   INSTRUMENTS   OF   EVIDENCE.  307 

any  fact  already  in  issue  in  the  cause  ;  and  in  regard  to  the  char- 
acter of  the  witness,  the  only  inquiry  is  as  to  his  general  rep- 
utation for  truth  and  veracity,  as  has  been  stated  in  a  preceding 
volume.^ 

1  And  see  ante,  Vol.  1,  §  461,  and  cases  there  cited. 


308  LAW    OF   EVIDENCE   IN   EQUITY.  [PART  VL 


CHAPTER    III. 

OF  THE   EXCLUSION    OP  EVIDENCE. 

[*  §  349.   Depositions  may  be  suppressed  before  the  hearing. 
350,  351.    Grounds  for  suppression. 

352.  Irregularity,  from  mistake  where  party  acts  in  good  faith  does  not  vitiate 

deposition. 

353.  Objections  made  at  the  hearing  usually  those  which  could  not  have  been 

made  before,  or  which,  if  sustained,  are  finally  fatal  to  the  testimony, 

354.  As  to  quantity  of  evidence  required  to  overbalance  the  answer. 

355.  As  to  impertinent,  irrelevant,  or  immaterial  evidence. 

356.  Sufficient  that  the  character  of  the  facts  offered  to  be  proved  are  indicated  by 

pleadings  so  as  not  to  take  adverse  party  by  surprise. 

357.  Evidence,  inadmissible  as  direct  testimony,  may  prove  collateral  facts. 

358.  Evidence  of  facts  only  which  are  fully  admitted,  inadmissible. 

359.  Rule  as  to  primary  and  secondary  evidence  generally  same  as  at  law. 
360-363.   Parol  evidence  admissible  to  reform  instrument  in  writing. 

364.  To  show  that  an  absolute  conveyance  was  intended  only  as  a  mortgage. 

365.  Facts,  from  which  implied  trusts  arise,  may  be  proved  by  parol. 

366.  367.    Certain  presumptions  rebutted  by  parol  testimony. 

368.  Competency  of  witnesses,  except  the  parties,  generally  the  same  in  Law  and 

Equity. 

369.  When  objection  to  competency  must  be  taken.] 

1.    SUPPRESSION   OF   DEPOSITIONS   BEFORE   THE   HEARING. 

§  349.  In  the  course  of  proceedings  in  the  Courts  of  Common 
Law,  objections  to  the  competency  of  testimony  can  be  made  only 
at  the  trial,  when  the  testimony  is  offered  ;  there  being  no  existing 
rule,  by  which  the  questions  of  its  admissibility  can  be  heard  by 
the  Court  at  an  earlier  stage  of  the  cause.  But  in  Chancery,  the 
objection  may  be  heard  and  the  point  settled,  either  at  or  before 
the  hearing  of  the  cause. ^  Ordinarily,  the  time  to  apply  for  the 
suppression  of  depositions  is  after  publication  has  passed  :  for  un- 
til that  time,  it  is  seldom  that  it  can  bo  known  whether  any  cause 
for  their  suppression  exists.  But  it  is  not  necessary  to  wait  until 
publication  ;  for  if  the  ground  of  objection  is  previously  apparent, 

1  [*"A  motion   to  suppress  testimony  tions  in  practice  which  must  rest  mainly 

is,  under  ordinary  circumstances,  addressed  in    discretion."     Partridge  v.  Stocker,  36 

wholly  to  tlie  discretion   of  the   Chancel-  Vt.  110.] 
lor,  and  is  one   of  tiiose  incidental  ques- 


PART  VI.]  OF  THE   EXCLUSION   OF  EVIDENCE.  309 

in  any  manner  whatever,  the  Court,  on  motion  and  proof  of  the 
fact,  will  make  an  order  for  suppressing  tlie  testimony.^  Thus, 
where  it  was  shown,  before  publication,  that  the  deposition  of  the 
witness,  who  was  also  the  agent  of  the  party  producing  him,  was 
brought,  already  written,  to  the  commissioners,  and  taken  by  them 
in  that  form,  it  was  suppressed.^  So,  where  the  deposition  was 
prepared  beforehand  by  the  attorney  of  the  party,  it  was  suppressed 
before  publication.^ 

§  350.  The  usual  grounds  on  which  depositions  are  suppressed 
are,  either  that  the  i7iterrogatories  are  leading ;  or  that  the  interrog- 
atories and  the  answers  to  them  are  scandalous  d^^w^  impertinent ; 
or  that  the  witness  was  incompetent ;  or  that  some  irregularity  has 
occurred  in  relation  to  the  depositions.  When  the  objection  is  for 
either  of  the  two  former  causes,  it  is  referred  to  a  master,  to  ascer- 
tain and  report  the  fact,  and  the  question  is  presented  to  the  Court 
upon  exceptions  to  his  report.*  If  the  exceptions  are  sustained, 
the  deposition  will  be  suppressed ;  totally,  if  the  objection  goes  to 
the  whole,  otherwise,  only  as  to  the  objectionable  part.  Thus, 
if  one  interrogatory  alone  is  reported  as  leading,  the  deposition 
as  to  that  interrogatory  only  will  be  suppressed ;  and  if  part 
only  of  the  interrogatory  be  leading,  then  that  part,  and  so  much 
of  the  answer  as  is  responsive  to  it,  will  be  suppressed.^  And 
where  depositions  are  suppressed  because  the  interrogatories  are 
leading,  it  is  not  usual  to  grant  leave  to  re-examine  the  witnesses ; 
though  it  will  sometimes  be  permitted  under  special  circumstances  ; 
as,  for  example,  where  the  interrogatories  were  improperly  framed 
through  inadvertence,  and  with  no  im^proper  design. ^  But  no 
reference  is  ordinarily  made  for  impertinence  alone,  not  coupled 
with  scandal ;  '^  unless  it  be  on  special  application  at  the  hearing 
of  the  cause  ;  ^  or  where  the  impertinence  consists  in  the  examina- 
tion of  witnesses,  to  discredit  other  witnesses,  without  a  special 
order  for  that  purpose  ;  in  which  latter  case  there  may  be  a  refer- 

1  [*"  As  according  to  the  present  prac-         *  2  Dan.    Ch.    Pr.    1141,    1143      [*3d 
tice"  (Englisli)  "the  examination  is  con-     Amer.  Ed.  961,  962,  and  notes]. 

ducted  by  tlie  examiner,  and  many  of  the  ^  Id.  1143. 

objections  formerly  apjjlicable  to  evidence  ^  Ibid.  ;  Ld.  Arundel  v.  Pitt,  Ambl.  585. 

are  abolished,  it  can  scarcely  happen  that  '^  White  v.  Fussell,  19  Ves.  113.     And 

cases  for   the   suppression   of  depositions  see   Cocks  v.   Worthington,  2   Atk.  235, 

will  occur   hereafter."     2   Dan.    Ch.   Pr.  236 ;  Pyncent  v.    Pyncent,   3   Atk.    557 ; 

3d  Amer.  Ed.  961.]  2   Dan.  Ch.  Pr.  1049,  1144    [*3d  Amer. 

2  Shaw  V.  Lindsey,  15  Ves.  380.  Ed.  911-912]. 

3  Anon.  Ambl.  252,  n.  4,  Blunt's  ed. ;  »   2   Dan.    Ch.   Pr.    1144;    Osmond  v. 
2  Dan.  Ch.  Pr.  1 147.  TindaU,  Jac.  627. 


310  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI 

encc  either  before  or  after  publication.^  And  where  exceptions 
are  taken  after  publication  and  before  the  hearing,  for  tlie  incom- 
petency of  a  witness,  a  special  application  is  made  to  the  Court  for 
leave  to  exhibit  articles,  stating  the  facts,  and  praying  leave  to 
examine  other  witnesses  to  establish  the  truth  of  them  ;  and  if  the 
facts  were  not  known  until  after  publication,  the  application  will 
be  granted. 2  The  causes  which  render  a  witness  incompetent  have 
been  considered  in  a  preceding  volume.^ 

§  351.  In  regard  to  irregularities  in  the  manner  of  taking  dep- 
ositions, when  it  is  recollected  that  the  mode  in  which  they  are 
to  be  taken  is  distinctly  prescribed  either  in  statutes  or  in  rules  of 
Court,  or  in  both,  it  is  evident  that  any  departure  from  the  rules 
so  prescribed  must  vitiate  the  entire  proceeding ;  and  accordingly, 
in  such  cases,  the  deposition  will  be  suppressed.*  The  irregular- 
ities, when  not  apparent  upon  the  face  of  the  proceedings,  should 
be  shown  to  the  Court  by  affidavit.  But  there  are  other  irregular- 
ities, occasioned  by  a  departure  from  rules  not  expressed  in  formal 
orders,  but  long  recognized  in  Chancery  practice,  for  which  also 
depositions  will  be  liable  to  be  suppressed.  Thus,  it  is  a  cause  of 
suppression,  if  the  general  interrogatory  be  not  answered  ;^  if  the 
deposition  be  taken  before  persons,  some  of  whom  are  not  named 
in  the  commission  ;^  if  a  joint  commission  be  not  executed  by  all 
the  commissioners;"  if  the  cross-interrogatories  be  not  put;^  if  all 

1  Mill  V.  Mill,  12  Vcs.  407.  of  depositions,  the  usual  practice  in  Chan- 

2  Calla;,'-han  v.  Rochfort,  3  Atk.  643  ;  eery  is  to  move  to  suppress  them,  but  not 
Gass  V.  Stinson,  2  Suuin.  608.  Olijec-  to  exclude  them  for  irrelevancy,  or  on 
tions  to  the  competency  of  a  witness,  if  account  of  the  matter  deposed  to.  Vau- 
hnown,  and  not  made  at  the  time  of  taking  gine  c.  Taylor,  18  Ark.  65.] 

a  deposition  under  the  act  of  Congress,  ^  Willings  v.  Consequa,  1  Pet.  C.  C.  R. 
will  lie  deemed  to  have  been  Avaived.  301 ;  Banert  v.  Day,  3  Wash.  243.  So, 
United  States  v.  Hair-pencils,  1  Paine,  where  it  appeared  that  the  evidence  had 
400.  So,  wlu^rc  a  witness,  known  to  be  been  taken  by  a  clerk  to  the  commission- 
incompetent,  was  cross-examined,  this  is  a  ers,  and  the  effect  of  some  of  the  dcposi- 
waiver  of  the  objection,  on  the  part  of  the  tions  had  been  communicated  to  the  agent 
party  by  whom  he  was  cross-examined,  of  the  other  side.  Lennox  v.  Munnings, 
Charitable  Corp.  v.  Sutton,  2  Atk.  403  ;  2  Y.  &  J.  483. 
Corp.  of  Sutfoii  V.  Wilson,  1   Vern.  2.54.  "  Armstrong  v.  Brown,  1  Wash.  C.  C. 

"  See  ante.  Vol.  1,  Part  3,  eh.  2,  §§  326  -  R.  43. 

430.  8  Gilpins   r.    Consequa,  3  Wash.  184; 

*  Secan/c,  Vol.  1,  §§  320-324,  for  the  Bell  i'.  Davidson,  Id.  328.    And  .sec  Davis 

manner  in  wliich  depositions,  in  general,  v.  Allen,  14  Pick.  213;  Bailis  y.  Cochran, 

are  to  be  taken.    The  peculiarities  of  local  2  Johns.  417.     But  sec,  for  a  qualiHcatiou 

practice  in  the  State   Courts   arc   foreign  of  this  rule,  ante,  Vol.  I,  §  554.     The  re- 

from  the  desigti  of  this  work.  fusal  of  the  witness  to  be  cross-examined 

^  Richardson  r.  (ioldcn,  3  Wash.  109;  is  no  cause  for  su[)j)rcssing  the  dejjosiiion  ; 

Dodge  V.  Israel,  4  Wash.  323.     [So  depo-  but  is  punishable  as  a  contempt.     Courte- 

eitions    taken    after   an    appeal    from    tlie  nay  v.  iloskins,  2  Russ.  253.     The  eflcct 

lower  Court  will  be  suppressed.     Perkins  of  the  want  of  a  cross-examination,  upon 

V.    Tcsterment,   3    Ljwa,    307.      Where   a  the   admissibility   of  the    deposition,    was 

defect  or  omission  is  apparetit  on  the  face  fully  considered"  by  Story,  J.,  in  Gass  v. 


PART  Vl.J 


OF  THE  EXCLUSION  OF  EVIDENCE. 


311 


proper  interrogatories  on  either  side  do  not  appear  to  have  been 


Stinson,  3  Sumner,  98.  That  case,  being 
before  a  master,  and  the  plaintiffs  being 
desirous  of  the  testimony  of  a  witness  who 
was  dangerously  ill,  a  commissioner  was 
agreed  on  by  the  parties  to  take  his  an- 
swers to  interrogatories ;  and  they  were 
accordingly  taken  to  the  interrogatories 
filed  by  the  plaintift";  no  objection  being 
made  to  the  commissioner's  proceeding 
immediately,  upon  those  interrogatories 
alone,  until  others  could  be  tiled,  saving 
to  the  defendant  all  other  benefit  of  excep- 
tion. The  witness  lived  several  months 
afterwards,  duiing  which  the  commission- 
er proceeded  with  the  examination  from 
time  to  time,  as  the  witness  was  able  to 
bear  it ;  but  before  the  tiling  of  any  cross- 
interrogatories,  and  after  answering,  on 
oath,  all  the  direct  interrogatories,  the 
witness  died.  The  defendant  objected  to 
the  admission  of  the  deposition,  for  the 
want  of  a  cross-examination ;  but  the 
master  admitted  it ;  and  for  this  cause, 
among  others,  his  report  was  excepted  to. 
The  learned  Judge,  on  this  point,  deliv- 
ered his  opinion  as  follows  :  "  The  general 
rule  at  law  seems  to  be,  that  no  evidence 
shall  be  admitted,  but  what  is  or  might  be 
under  the  examination  of  both  parties. 
So  the  doctrine  was  laid  down  by  Lord 
Ellenborough,  in  Cazenove  v.  Vaughan 
(1  Maule  &  Selw.  R.  4,  6),  and  his  Lord- 
ship on  that  occasion  added :  '  And  it  is 
agreeable  to  common  sense,  that  what  is 
imperfect,  and,  if  I  may  so  say,  but  half 
an  examination,  shall  not  be  used  in  the 
same  way  as  if  it  were  complete.'  T'hc 
same  principle  seems  recognized  in  At- 
torney-General i\  Davison  ( 1  McClel.  & 
Younge,  R.  160).  But  neither  of  these 
cases  called  for  an  explicit  declaration  as 
to  what  would  be  the  efiect  of  a  regular, 
direct  examination,  where  the  party  had 
died    before    any   cross-examination.      In 

V.  Brown  (Hardres,  R.  .31.5),  in  the 

case  of  an  ejectment  at  law,  the  question 
occurred,  whether  the  examination  of  a 
witness,  taken  de  bene  esse  to  preserve  his 
testimony  upon  a  bill  preferred  and  before 
answer,  upon  an  order  of  Court,  where  the 
witness  died  before  he  could  be  examined 
again,  and  he  being  sick  all  the  mean  time, 
so  that  he  could  not  go  to  be  examincil, 
was  admissible  on  the  trial  of  the  eject- 
ment ;  and  it  was  ruled,  after  consultation 
with  all  the  Judges,  that  it  could  not  be, 
'  because  it  was  taken  before  issue  joined 
in  the  cause ;  and  he  might  have  been 
examined  after.'  From  what  is  said  in 
the  same  book  in  Watt's  case  (Hardres, 
R.  332),  it  seems  to  have  been  held,  at 
that  time,  that,  if  witnesses  are  examined 
de  bene  esse   before   answer  upon  a  con- 


tempt, such  depositions  cannot  be  made 
use  of  in  any  other  Court  but  the  Court 
only  where  they  were  taken.  And  the 
reason  assigned  is,  '  because  there  was  no 
issue  joined,  so  as  there  could  be  a  legal 
examination.'  It  may  well  be  doubted,  if 
this  doctrine  would  prevail  in  our  day,  at 
least  in  Courts  of  Equity.  Indeed,  it 
seems  directly  against  the  decision  of  the 
Court  of  King's  Bench  in  Cazenove  u. 
Vaughan  (I  Maule  &  Selw.  R.  4,  6),  for 
in  that  case  it  was  ruled,  that  a  deposition 
taken  de  bene  esse,  where  the  party  might 
have  cross-examined,  and  did  not  do  so, 
nor  take  any  step  to  obtain  a  cross-exami- 
nation, might  be  read  in  a  trial  at  law,  the 
witness  having  gone  abroad.  On  that 
occasion,  the  Court  said  :  '  If  the  adverse 
party  has  had  liberty  to  cross-oxamine, 
and  has  not  chosen  to  exercise  it,  the  case 
is  then  the  same  as  if  he  had  cross-exam- 
ined ;  otherwise  the  admissibility  of  the 
evidence  would  depend  upon  his  pleasure, 
whether  he  will  cross-examine  or  not, 
whirh  would  be  a  most  uncertain  and  un- 
just rule.' 

"  But  it  is  the  more  important  to  con- 
sider how  this  matter  stands  in  Equity ; 
for,  although  the  rules  of  evidence  are,  in 
general,  the  same  in  Equity  as  at  Law, 
they  are  far  from  being  universally  so. 

"  It  seems  clear,  that  in  Equity,  a  depo- 
sition is  not,  of  course,  inadmissible  in 
evidence,  even  if  there  has  been  no  cross- 
examination,  and  no  waiver  of  the  right. 
Thus,  if  a  witness,  after  being  examined 
on  the  direct  interrogatories,  should  refuse 
to  answer  the  cross-interrogatories,  the 
party  producing  the  witness  will  not  be 
deprived  of  the  benefit  of  his  direct  tcsti- 
monv ;  for,  upon  application  to  the  Court, 
the  witness  would  have  been  compelled  to 
answer.  So  it  was  held  in  Courtenay  v. 
Hoskins  (2  Russ.  R.  253).  But  if  the 
witness  should  secrete  himself,  to  avoid  a 
cross-examination,  there  the  Court  would, 
or  at  least  might,  suppress  the  direct  ex- 
amination. Elowerday  v.  Collet  ( I  Dick. 
R.  288).  In  such  a  case  a  cross-examina- 
tion is  still  possible;  and  the  very  conduct 
of  the  witness,  in  secreting  himself,  has  a 
just  tendency  to  render  Ids  direct  exami- 
nation suspicious. 

"  But  where  the  direct  interrogatories 
have  been  fully  answered,  and  an  inevita- 
ble accident  occurs,  which,  without  any 
fault  on  either  side,  prevents  a  cross-ex- 
amination, I  do  not  know  that  a  like  rule 
has  been  established,  or  that  the  deposi- 
tion has  been  suppressed.  So  far  as  au- 
thorities go,  they  incline  the  other  way. 
In  Arundel  v.  Arundel  (1  Chan.  R.  90), 
the  very  case  occurred.     A  witness  was 


312 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  VI. 


substantially  answered;^  if  the  deposition  is  in  the  handwriting 
of  the  party,  or  his  agent,  or  his  attorney  ;^  if  it  is  taken  after  ar- 
gument of  the  cause,  without  a  special  order  ;3  if  it  was  copied  by 


examined  for  the  plaintiff,  and  was  to  be 
cross-examined  for  the  defendant ;  but 
before  he  could  be  cross-examined  he  died. 
Yet  the  Court  ordered  the  deposition  to 
stand.  Copeland  v.  Stanton  (I  P.  Wms. 
It.  414)  is  not  an  adverse  authority;  for, 
in  that  case,  the  direct  examination  was 
not  completed,  and  the  witness  had  not 
signed  the  deposition,  so  far  as  it  went ; 
and  the  examination  being  postponed  to 
another  day,  he  was  the  next  morning 
taken  suddenly  ill,  and  died.  The  Court 
denied  the  motion  to  allow  the  deposition, 
as  far  as  it  had  been  taken.  But  the 
Court  refused,  because  the  examination 
was  imperfect ;  and,  indeed,  until  the  wit- 
ness had  signed  the  examination,  he  was 
at  liberty  to  amend  and  alter  it  in  any 
part.  In  O'Callaghan  v.  Murphy  (-2  Sch. 
&  Lefr.  R.  158),  Lord  Rcdesdale  allowed 
the  deposition  of  a  witness,  whose  exami- 
nation had  been  completed,  but  who  died 
before  his  cross-examination  could  be  had, 
to  be  read  at  the  hearing,  deeming  it 
proper  evidence,  like  the  case  of  a  witness 
at  Nisi  Prius,  who,  after  his  examination, 
and  before  his  cross-examination,  should 
suddenly  die,  under  which  circumstances, 
he  thought,  that  the  party  producing  him 
would  not  lose  the  benefit  of  the  evidence 
he  had  already  given.  But  the  want  of 
such  cross-examination  ought  to  abate  the 
force  oi'  the  testimony.  However,  the 
point  was  not  positively  and  finally  ruled, 
as,  upon  examining  the  cross-interrogato- 
ries, they  were  not  found  to  apply  to  any- 
thing to  which  the  witness  had  testified  in 
his  direct  examination,  and  therefore  the 
deposition  was  held  admissible.  In  Nolan 
V.  Shannon  (1  Molloy,  R.  157),  the  Lord 
Chancellor  held,  tliat  the  direct  examina- 
tion of  a  witness  might  be  read  at  the 
hearing,  where  a  cross-examination  had 
been  prevented  by  his  illness  and  death. 
My  own  researches,  and  those  of  the  coun- 
sel, have  not  enabled  me  to  find  any  other 
cases,  in  which  the  question  has  been 
raised ;  .and  in  the  latest  Book  of  Prac- 
tice (1  Smith's  C^haii.  Pr.  294),  no  other 
case  is  allurled  to  on  the  subject,  tlian  that 
of  Copeland  v.  Stanton  (1  P.  Wms.  U. 
4  14).  So  that  the  general  doctrine  is  fiir 
from  being  established  in  the  manner 
wliich  the  argument  for  the  defendant  has 
supposed,  and  appears  strongly  to  lead 
the  other  way. 

"  But  if  it  were,  I  should  have  no  doubt, 
that  the  special  circumstances  of  this  case 
would  well  create  an  exception.  The 
direct  examination  was  taken  by  consent. 


No  cross-interrogatories  were  ever  filed. 
The  witness  lived  several  months  after  the 
original  examination  was  begun ;  and 
there  is  not  the  slightest  proof,  that,  if  the 
cross-interrogatories  had  been  filed,  they 
might  not  have  been  answered.  Under 
such  circumstances,  I  am  of  opinion,  that 
the  omission  to  file  the  cross-interrogato- 
ries was  at  the  peril  of  the  defendant.  I 
do  not  say  that  he  was  guilty  of  laches. 
But  I  put  it  upon  this,  that,  as  his  own 
delay  was  voluntary,  and  the  illness  of  the 
witness  well  known,  the  other  party  is  not 
to  be  prejudiced  by  his  delay.  His  eon- 
duct  cither  amounted  to  a  waiver  of  any 
objection  of  this  sort,  or  to  an  election  to 
take  upon  himself  the  whole  hazard  of  the 
chances  of  life.  It  appears  to  me,  that  the 
case  falls  completely  within  the  principles 
laid  down  in  Cazenove  v.  Vaughan  (1 
Maule  &  Selw.  II.  4,  6)."  See  3  Sumn. 
104-108.  [*The  affidavit  of  a  witness 
who  dies  before  he  can  be  cross-examined 
is  admissible,  unless  the  witness  had  kept 
out  of  the  way  to  avoid  cross-examination. 
Davies  v.  Otty,  34  L.  J.  Chanc.  252.  A 
plaintiff  whose  evidence  was  of  great  im- 
portance to  the  issue  in  the  suit,  made  an 
affidavit  which  was  duly  sworn  and  filed. 
He  then  died.  No  notice  of  the  affidavit 
was  given  to  the  defendant,  and  they  had 
not  cross-examined  the  plaintiff  upon  it. 
The  Court  allowed  the  affidavit  to  be  re- 
ceived at  the  hearing  of  the  cause  on  mo- 
tion for  decree.  Tanswell  v.  Scurrah,  11 
L.  T.  N.  S.  761.] 

1  Bell  V.  Davidson,  supra.  And  see 
Moseley  v.  Moseley,  Cam.  &  Nor.  522.  But 
if  substantially  answered,  it  is  sufficient. 
Nelson  v.  United  States,  1  Pet.  C.  C.  R. 
235,  237.  [*  A  deposition  is  not  to  be 
wholly  rejected  for  the  omission  of  the 
witness  to  answer  a  particular  interroga- 
tory fully,  unless  his  answer  is  so  imper- 
fect or  evasive  as  to  induce  the  Court  to 
believe  that  he  wilfully  kept  back  material 
facts  within  his  knowledge.  Stratford  v. 
Ames,  8  Allen,  579.]  Misbehavior  of  the 
witness,  in  giving  his  testimony,  may  also 
be  cause  for  suppressing  it.  Phillips  i'. 
Thompson,   I  Johns.  Ch.   L39,  140. 

^  Moseley  v.  Moseley,  supra;  Allen  v. 
Rand,  5  Conn.  322 ;  Amory  v.  Fellowes, 
5  Mass.  219,  227  ;  Burtch  v.  Hogge,  Ilar- 
ringt.  Ch.  31.  And  see  Smith  (;.  Smith, 
2  Greenl.  408. 

^  Dangcrfield  v.  Claiborne,  4  Hen.  & 
Mnnf  397  ;  [or  after  appeal  from  the  low- 
er Court,  Perkins  v.  Tcstenuent,  3  Iowa, 
307.] 


PART  VI.] 


OF   THE   EXCLUSION   OF   EVIDENCE. 


313 


the  deponent  in  the  commissioner's  presence,  from  a  paper  which 
the  deponent  had  previously  drawn  up  at  a  different  place  ;^  or 
which  was  otherwise  previously  prepared;^  if  the  commissioner  is 
found  to  have  been  the  agent,  attorney,  landlord,  partner,  near 
relative,  or  creditor  of  the  party  in  whose  behalf  he  was  nomi- 
nated ;  or  was  otherwise  unfit,  by  reason  of  interest  or  partiality, 
to  execute  the  commission.^  But  it  is  to  be  noted,  that  where  a 
party  cross-examines  a  witness  upon  the  merits,  this,  so  far  as  re- 
gards himself  alone,  and  not  his  co-parties,  is  a  waiver  of  objec- 
tion to  any  previous  irregularity  in  the  taking  of  the  deposition, 
and  of  any  objection  to  his  competency,  which  was  then  known;* 
and  that  all  objections  to  depositions  ivMch  might  have  been  obvi- 
ated by  a  re-examination  of  the  ivitness,  will  be  considered  as  waived, 
unless  made  before  the  hearing.^ 


1  United  States  v.  Smith,  4  Day,  126  ; 
Underhili  v.  Van  Cortlandt,  2  Johns.  Ch. 
339,  346. 

^  Shaw  V.  Lindsey,  15  Ves.  380.  And 
see  4  Inst.  279,  ad  calc. 

3  2  Dan.  Ch.  Pr.  1076,  1077  [*3d  Amer. 
Ed.  927].  In  New  Hantpshire,  an  uncle  of 
the  party  has  been  held  incompetent  to 
take  a  deposition  in  the  cause.  Bean  v. 
Quimby,  5  N.  Hamp.  94.  In  Massachu- 
setts, a  sonin-Iaw  was  held  competent,  un- 
der the  circumstances  of  the  case.  Chan- 
dler V.  Brainard,  14  Fick.  28.5.  But  in 
both  cases  the  doctrine  of  the  te.xt  was  as- 
serted. And  see  Ld.  Mostyn  v.  Spencer, 
6  Beav.  13.t  ;  Wood  v.  Cole,  13  Pick.  279  ; 
Coffin  V.  Jones,  Id.  441. 

1  Mechanics'  Bank  v.  Seton,  1  Pet.  299, 
307;  Bogert  v.  Bogert,  2  Edw.  Ch.  R. 
399  ;  Gass  v.  Stinson,  2  Sumn.  605  ;  Char- 
itable Corp.  V.  Sutton,  2  Atk.  403  ;  Sut- 
ton V.  Wilson.  1  Vern.  254.  And  see  ante, 
Vol.  1,  §  421.  The  rule  on  this  subject  is, 
that  the  party,  objecting  to  the  competency 
of  testimony,  ought  to  take  the  exception 
as  soon  as  the  cause  of  it  comes  to  his 
knowledge.  Lord  Eldon  held,  that  the 
party,  in  such  case,  was  bound  to  make  it 
reasonably  clear,  that  at  the  date  of  the 
examination  of  the  witness,  he  had  no 
knowledge  of  the  objection ;  otherwise, 
he  would  be  deemed  to  have  waived  it. 
Vaughan  v.  Worrall,  2  Swanst.  400.  The 
reason  of  the  rule,  and  its  qualification  in 
Equity,  were  thus  stated  by  Sir  Wm. 
Grant,  M.  R.,  in  Moorhouse  v.  De  Passou, 
19  Ves.  434  :  "  At  Law,  a  party  waives 
any  objection  to  the  competence  of  a  witness 
by  pursuing  his  cross-examination,  after 
the  witness  appears  to  be  interested.  For- 
merly, the  inquiry,  whether  a  witness  was 


interested,  could  be  made  only  upon  the 
voir  dire ;  now,  if  the  interest  comes  out  at 
any  period,  his  evidence  is  rejected.  Here 
there  is  no  such  opportunity  of  inquiring 
into  the  competence  of  the  witness  by  the 
voir  dire ;  and  until  the  depositions  are 
published,  it  cannot  be  known  whether 
the  witness  has,  or  has  not,  admitted  the 
fact  upon  which  the  objection  arises.  The 
waiver  at  Law  arises  from  pursuing  the 
examination,  after  the  objection  to  the 
competence  of  the  witness  is  known ;  but 
it  is  difficult  to  say,  how  an  unknown  ob- 
jection can  be  waived.  The  witness  may 
deny  all  interest  in  the  cause ;  and  upon 
the  supposition  that  he  is  competent,  it 
may  be  very  material  to  the  other  party  to 
cross-examine  him.  Under  these  circum- 
stances the  principle  leads  to  this  conclu- 
sion, that  in  Equity  the  cross-examination 
of  a  witness  in  utter  ignorance  of  his  hav- 
ing given  an  answer  to  an  interrogatory, 
showing  that  he  has  an  interest  in  the 
cause,  cannot  amount  to  a  waiver  of  the 
objection  to  his  competence."  The  exhi- 
bition of  articles  to  discredit  a  witness  is 
also  held  a  waiver  of  any  objection  on  the 
ground  of  irregularity  in  taking  the  depo- 
sition.    Malone  v.  Morris,  2  Moll.  324. 

5  Kimball  v.  Cook,  1  Gilm.  423.  In 
Underhili  v.  Van  Cortlandt,  2  Johns.  Cli. 
339,  it  appeared  by  the  examiner's  certifi- 
cate, that  the  examination  commenced 
June  28,  and  was  continued  to  July  5  ; 
and  for  this  cause  it  was  moved  to  sup- 
press the  deposition  ;  but  the  motion  wa.s 
refused  by  Chancellor  Kent,  who  observed, 
that,  "  It  would  seem  to  be  too  rigorous, 
when  the  other  party  has  had  the  benefit 
of  a  cross-examination,  and  has  not  raised 
the  objection  until  the  hearing,  ivken  no  re- 


314  LAW   OF   EVIDENCE  IN  EQUITY.  [PART  Yl. 

§  352.  But  though  the  Court  is  generally  strict  in  requiring  a 
compliance  with  its  rules  of  practice  in  regard  to  the  taking  of 
depositions ;  yet  where  an  irregularity  has  evidently  arisen  from 
mistake,  and  the  party  has  acted  in  good  faith,  it  will  pennit  the 
deposition  to  stand;  and  this,  especially,  where  the  other  party  has 
done  anything  which  may  have  sanctioned  the  proceeding. ^  In 
such  cases,  if  the  mistake  is  capable  of  correction  in  Court,  or  can 
be  otherwise  relieved,  the  Court,  in  its  discretion,  will  either  amend 
the  deposition,  or  otherwise  afford  the  appropriate  remedy .2  Thus, 
where,  after  the  examination  of  the  plaintiflF's  witnesses,  under  a 
commission,  it  was  discovered  that  the  title  of  the  cause  was  acci- 
dentally mistaken  in  the  commission,  the  Court  refused  to  suppress 
the  depositions,  but  ordered  the  clerk  to  amend  the  commission  in 
that  particular,  and  granted  a  new  commission  for  the  examina- 
tion of  the  defendant's  witnesses.^  So,  where  a  witness  was  inad- 
vertently examined  and  cross-examined  two  days  after  publication, 
the  Court  refused  to  suppress  the  deposition.*  So  where  deposi- 
tions were  taken  abroad,  and  the  commissioners  refused  to  allow 
the  defendant  a  reasonable  time  to  prepare  cross-interrogatories,  the 
Court  would  not  suppress  the  depositions,  but  granted  the  defend- 
ant a  new  commission,  to  other  commissioners,  for  the  cross  exam- 
ination of  the  plaintiff's  witnesses,  and  the  examination  of  his 
own,^  And  here  it  may  be  added  that,  though  it  is  a  general  rule 
that  depositions,  once  suppressed,  cannot  be  used  in  the  same 
cause,  yet,  where  the  objection  does  not  go  to  the  competency  of 
the  witness,  if  it  should  happen  that  the  witness  could  not  be  ex- 
amined again,  the  order  of  suppression  does  not  go  the  length  of 
preventing  the  Court  from  afterwards  directing  that  the  deposition 

examination  can  he  had,  anrl  when  no  ill  use  bad  faith,  rather  than  from  accident  and 

is  stated  to  have  been  made  of  the  irrcgu-  mistake."     Partridge  v.   Stockcr,  36    Vt. 

laritv.     The  question  whether  the  deposi-  109.] 

tion' shall  be  suppresse<l,  is  a  matter  of        '^  Sec,  as  to  amending  depositions,  si/pra, 

discretion  ;  and  in  Ilaniinond's  case,  Dick.  §347.  t^.  ,      „„ 

50     and    in    Debrox's   case,    cited    1    P.         '^  Robert   v.   Millechamp,     1    Dick.    22. 

W'nis    4U,    the   deposition   of  a   witness,  And  sec  O'Hara  v.  Creaj),  2  Irish  Eq.  R. 

examined  after  publication,  was  admitted;  419.  t^-  i      c 

in    the  one    case,    because    the    opposite         *  Hammond   v. ,  1    Dick.    50.     b^o 

l)arty    hail    cross-examined,    and    in    the  where  the  depositions  \yere  taken  during 

other  because  the  testimony  would  other-  an  abatement  of  the  suit,  the  fact  not  be- 

wise  have  been   lost  forever."     2   Johns,  ing  known  at  the  time.    Sinclair  r.  James, 

Ch  .345.  1  Dick.  277. 

»  2l)an.  Ch.  Pr.  1145, 1146  [*.3d  Amer.  "  Campbell    d.   Scougall,    19    Vcs.   .552. 

Ed   961-962.     "  A  deposition  ouglit  not  For  otlier  instances,  see  Ciirre  r.  Bowyer, 

to   be  suppressed    for   a    failure    to   com-  3    Swanst.    357  ;    Lincoln    v.    Wright,    * 

ply  with   the  rules  in  a  mere  matte?   of  Bcav.  164  ;  Pearson  y.  Rowland,  2  Swanst. 

form,   unless   such    failure  proceeds   from  266. 


PART  VI.]  OF   THE   EXCLUSION   OF   EVIDENCE.  315 

may  be  opened,  if  necessity  should  require  that  the  rule  be  dis- 
pensed with.i 

2.     OBJECTIONS    AT    THE    HEARING. 

§  353.  The  causes  ah-eady  mentioned,  for  which  depositions 
may  be  suppressed  before  the  hearing  may  also  be  shown  at  the 
hearing  with  the  same  effect.  But  we  have  seen  tlie  reluctance  of 
the  Court  to  suffer  testimony  to  be  lost,  by  any  accidental  defect 
or  irregularity,  not  going  to  the  merits,  and  capable  of  supply  or 
amendment ;  and  the  readiness  with  which  its  discretionary  pow- 
ers will  be  exerted  to  cure  defects  and  prevent  the  delay  of  justice. 
Hence  it  is  that  objections,  capable  of  being  obviated  in  ajiy  of  the 
modes  we  have  mentioned,  either  by  amendment  in  open  Court 
or  by  a  new  commission,  new  interrogatories  or  a  re-examination, 
are  seldom  made  at  so  late  a  stage  of  the  cause  as  the  hearing ; 
the  usual  effect  being  unnecessarily  to  increase  the  expense,  and 
to  cause  delay ;  circumstances  which  the  Judge  may  not  fail  to 
notice,  to  the  party's  disadvantage,  in  the  subsequent  disposition 
of  the  cause.  The  objections  usually  taken  at  the  hearing  are 
therefore  those  on'ly  which  were  until  then  undiscovered,  or  inca- 
pable of  being  accurately  weighed,  or  which,  if  sustained,  are  final- 
ly fatal  to  the  testimony.  Of  this  nature  are  deficiencies  in  the 
amount  of  the  proof  required  to  overbalance  the  weight  of  the  an- 
swer ;  impertinence  or  irrelevancy  of  the  testimony ;  its  inadmis- 
sibility to  control  the  documentary,  or  other  written  evidence  in 
the  cause,  or  to  supply  its  absence ;  its  inferior  nature  to  that 
which  is  required ;  and  the  incompetency  of  the  witnesses  to  tes- 
tify, either  generally  in  the  cause,  or  only  to  particular  parts  of  the 
matters  in  issue.  Some  of  these  subjects,  so  far  as  they  have  been 
treated  in  a  preceding  volume,  will  not  here  be  discussed ;  our 
present  object  being  confined  to  that  which  is  peculiar  to  proceed- 
ings in  Equity. 

§  354.  And  first,  in  regard  to  the  quantity  of  proof  required  to 
overbalance  the  answer.  We  have  already  seen^  that,  where  the 
answer  is  responsive  to  the  allegations  in  the  bill,  and  contains 
clear  and  positive  denials  thereof,  it  must  prevail ;  unless  it  is 
overcome  by  the  testimony  of  one  positive  witness,  with  other  ad- 

1  Shaw   V.  Lindsey,   15    Ves.  381,  per  Mortimer  v.  Orchard,  2  Ves.  244;  Wal- 
Lord  Eldon.  ton  ;'.  Hobbs,  2  Atk.  19;   Smith  v.  Brush, 

2  Supra,  §  289.     See  also  ante,  Vol.  1,  1  Johns.  Ch.  461  ;  2  Poth.  Obi.  App.  No, 
§  260;  Alam  v.  Jomdan,   1   Vern.   161;  16,  by  Evans,  pp.  236-242. 


316  LAW   OF   EVIDENCE  IN   EQUITY.  [PART  VI. 

minicular  proofs  sufficient  to  overbalance  it,  or  by  circumstances 
alone  sufficient  for  that  purpose.  This  rule,  whatever  may  have 
been  its  origin  or  principle,  is  now  perfectly  well  settled  as  a  rule 
of  evidence  in  Chancery.  The  testimony  of  a  single  witness,  how- 
ever, is  not  in  such  cases  utterly  rejected ;  but  when  it  is  made 
apparent  to  the  Court  that  the  positive  answer  is  opposed  only  by 
the  oath  of  a  single  witness,  unaided  by  corroborating  circumstan- 
ces, the  opposing  testimony  is  simply  treated  as  insufficient ;  but 
is  not  suppressed ;  for  the  Court  will  still  so  far  lay  stress  upon  it, 
as  it  serves  to  explain  any  collateral  circumstances ;  ^  and  the  cir- 
cumstances, thus  explained,  may  react,  so  as  to  give  effect  to  the 
evidence  by  the  operation  of  the  rule,  that  one  witness,  with  cor- 
roborating circumstances,  may  prevail  against  the  answer.^ 

§  355.  Secondly,  as  to  the  objection  that  the  evidence  is  imper- 
tinent,  or  irrelevant,  or  immaterial,  terms  which,  in  legal  estimation 
and  for  all  practical  purposes,  are  generally  treated  as  synony- 
mous ;  the  character  of  this  kind  of  testimony,  and  the  principle 
on  which  it  is  rejected  at  Law,  have  already  been  sufficiently  con- 
sidered.^ It  is  unimportant  whether  the  evidence  relates  to  mat- 
ters not  contained  in  the  pleadings  ;  or  to  matters  -admitted  in  the 
pleadings,  and  therefore  not  in  issue ;  or  to  matters  which,  though 
in  issue,  are  immaterial  to  the  controversy,  and  therefore  not 
requisite  to  be  decided  ;  as  in  either  case  it  is  equally  open  to  objec- 
tion. And  tlie  rule  in  Equity  is  substantially  the  same  as  at  Law. 
Thus,  in  regard  to  matters  not  contained  in  the  pleadings,  where  the 
bill  was  for  specific  performance  of  a  contract  for  the  purchase  of 
an  estate,  by  bidding  it  off  at  auction,  and  the  defence  was,  that 
puffers  were  employed,  proof  of  the  additional  fact,  that  the  auc- 
tioneer declared  that  no  bidder  on  the  part  of  the  plaintiff  was 
present,  was  rejected. ^  So,  where  the  bill  was  to  set  aside  a  sale, 
on  the  ground  of  fraud  practised  by  the  defendant  against  the 
plaintiff,  evidence  that  the  defendant  was  the  plaintiff's  attorney 
at  the  time  of  sale,  as  the  fact  from  which  the  fraud  was  to  be  in- 
ferred, was  rejected,  because  not  stated  in  the  bill.^ 

§  350.    It  is  not  necessary,  however,  that  all  the  specific  facts  to 

1  Anon.,  3  Atk.    270;  E.    Ind.  Co.   v.  Bland,  264;  Piatt  v.  Vattier,  9  Pet.  405. 

Donald,  9  Ves.  283.  Proofs    without    allegations,   and    allcpa- 

-  tircslcy,  Eq.  Ev.  pp.  4,  227.  tions   without  proof,   arc  alike  to  be  dis- 

^  Ante.,    Vol.    1,    §§    49-5.').     And    .sec  re^'arded.     Hunt  r.  Daniel,  6  J.  J.  Marsh. 

Cowan  V.  Price,  1  Biiib,  473  ;  Lanj^don  i;.  398. 

Goddard,  2  Story,  K.  267  ;  Knibb  v.  Dix-  *  Smith  v.  Clarke,  12  Ves.  477,  480.^ 

on,    1    Hand.  249  ;  Contcc  i;.   Dawson,  2  ''  Williams  v.  Llewellyn,  2  Y.  &  J.  68. 


PART  VI.]  OF   THE   EXCLUSION    OF   EVIDENCE.  317 

be  proved  should  be  stated  in  the  pleadings ;  it  is  sufficient  that 
their  character  be  so  far  indicated  by  the  pleadings  as  to  prevent 
any  surprise  on  the  other  party ;  and  hence  it  is  that  circumstan- 
ces, not  specifically  alleged,  may  often  be  proved  under  general 
allegations.  Thus,  for  example,  where  there  is  a  general  allega- 
tion that  a  person  is  insane,  or  is  habitually  drunken,  or  is  of  a  letvd 
and  infamous  character ;  evidence  of  particular  instances  of  the 
kind  of  character,  thus  generally  alleged,  is  admissible.^  So, 
where  the  bill  was  for  specific  performance  of  an  agreement  to 
continue  the  plaintiff  in  an  office,  and  in  the  answer  it  was  alleged 
that  the  plaintiff  had  not  accounted  for  divers  fees  which  he  had 
received  by  virtue  of  the  office,  and  had  concealed  several  instru- 
ments and  writings  belonging  to  the  office ;  evidence  of  particular 
instances  and  acts  of  the  misbehavior  alleged  was  admitted.^  And 
where,  in  a  bill  by  an  executor  for  relief  against  certain  bonds 
given  by  the  testator,  alleged  to  have  been  extorted  from  him  by 
threats  and  menaces  and  by  undue  means,  and  not  for  any  real 
debt,  it  was  answered  that  the  bonds  were  for  money  lent  and  for 
other  debts  ;  evidence  that  the  defendant  was  a  common  harlot,  and 
that  the  bonds  were  given  ex  turpi  causd  was  held  admissible.^ 
But  the  general  allegation,  in  cases  of  this  class,  must  be  so  far 
specific  as  to  show  the  nature  of  the  particular  facts  intended  to 
be  proved.  Therefore,  where,  to  a  bill  by  the  wife,  against  her 
husband,  for  the  specific  performance  of  marriage  articles,  the  de- 
fendant answered  that  the  wife  had  withdrawn  herself  from  him, 
and  had  lived  separately,  and  very  much  misbehaved  herself ;  evi- 
dence of  particular  acts  of  adultery  was  held  inadmissible,  as  not 
being  with  sufficient  distinctness  put  in  issue  by  so  general  a 
charge.* 

§  357.  But  it  does  not  follow  that  evidence,  inadmissible  as  di- 
rect testimony,  is  therefore  to  be  utterly  rejected  ;  for  such  evi- 
dence may  sometimes  be  admitted  in  proof  of  collateral  facts,  leading 
by  way  of  inducement  to  the  matter  directly  in  issue.  Thus,  in  a 
bill  to  impeach  an  award,  testimony  relating  to  the  merits,  though 
on  general  grounds  inadmissible,  may  be  read  for  the  purpose  of 
throwing  light  on  the  conduct  of  the  arbitrators. ^     So  in  a  bill  by 

1  Whaley  v.  Norton,  1  Vera.  484  ;  Clark  *  Sidney  v.  Sidney,  3  P.  Wms.  269,  276. 
V.  Peiiam,  2  Atk.  337  ;  Carew  u.  John.ston,  ^  Goodman  v.  Sayers,  2  J.  &  W.  259. 
2  Sch.  &  Lefr.  280.  For  the  application  of  a  similar  principle 

2  Wheeler  v.  Trotter,  3  Swanst.  174,  n.     at  Law,  see  Gibson  i;.  Hunter,  2  H.  Bl. 
*  Matthew  v.  Hanbury,  2  Vera.  187.  288;  Bottomley  v.  United  States,  1  Story, 


318  LAW   OF   EVIDENCE  IN   EQUITY.  [PART  VI. 

the  vendee,  to  set  aside  a  contract  for  the  purchase  of  lands,  on 
tlie  ground  of  fraudulent  misrepresentations  by  the  vendor,  evi- 
dence of  the  like  misrepresentations,  contemporaneously  made  to 
others,  is  admissible  in  proof  of  the  alleged  fraudulent  design.^ 
And  on  a  kindred  principle,  facts  apparently  irrelevant  may  some- 
times be  shown,  for  the  purpose  of  establishing  a  more  general 
state  of  things,  involving  the  matter  in  issue ;  as,  for  example, 
where  acts  of  ownership  exercised  in  one  spot  have  been  admitted 
to  prove  a  right  in  another,  a  reasonable  probability  being  first 
made  out  that  both  were  once  parcels  of  the  same  estate  belong- 
ing to  one  owner,  and  subject  to  one  and  the  same  burden.^ 

§  358.  In  regard  to  facts  already  admitted  in  the  pleadings,  evi- 
dence in  proof  or  disproof  of  which  is  therefore  inadmissible,  the 
rule  applies  only  where  the  admission  is  full  and  unequivocal,  and 
therefore  conclusive  upon  the  party ;  and  this  will  be  determined 
by  the  Court,  in  its  discretion,  upon  the  circumstances  of  the  par- 
ticular case.^ 

§  359.  Thirdly,  as  to  the  objection,  that  the  evidence  offered  is 
inadmissible  as  a  substitute  for  better  evidence,  alleged  to  exist  or  to 
control  the  effect  of  a  writing.  The  subject  of  primary  and  second- 
ary evidence,  and  the  duty  of  the  party  to  produce  the  best  evi- 
dence which  the  nature  of  the  case  admits,  having  been  treated  in  a 
preceding  volume,^  it  is  sufficient  here  to  observe,  that  the  princi- 
ples and  disthictions  there  stated  are  recognized  as  well  in  Equity 
as  at  Law.  In  some  cases,  however,  which  fall  under  the  maxim 
—  Omnia  prcesumuntur,  in  odium  spoliatoris  —  Courts  of  Equity 
will  go  beyond  Courts  of  Law,  in  giving  relief,  by  reason  of  the 
greater  flexibility  of  its  modes  of  remedy.  Thus,  where  the  king 
had  a  good  title  in  reversion  at  law,  as  against  the  heir  in  tail,  but 
"  the  deeds  whereby  the  estate  was  to  come  to  him  were  not  ex- 
tant, but  very  vehemently  suspicious  to  have  been  suppressed  and 
withholden  by  some  under  whom  the  defendants  claimed "  ;  it 
was  decreed,  that  the  king  should  hold  and  enjoy  the  land  until 
the  defendants  should  produce  the  deeds  J* 

§  360.    In  regard  to  the  admissibility  of  parol  evidence  to  control 

K.  143-145;  Crocker  i'.  Lewis,  3  Sumn.  *  Ante,   Vol.    1,   §§  82-97,    105,    161, 

I;  Supra,  §  15.  168. 

1  Bradley  v.  Cha.se,  9  Shcpl.  511.  ^  Rex.  v.  Arundel,  Hoh.  109,  comnient- 

2  (iresley,  Va\.  Evid.  p.  236  ;  Tyrwhitt  ed  on,  2  V.  Wins.  748.  And  sec  Dalston 
V.  Wynne,  2  B.  «&  A.  554.  And  sec  ante,  v.  Coatswortli,  1  1'.  Wms.  731,  and  eases 
Vol.  1 ,  §  52.  there  collected  ;  Saltern  v.  Mclhuish,  Ainbl. 

8  Gresley,  Eq.  Evid.  pp.  237,  238.  247  ;  Ante,  Vol.  1,  §  37. 


PART  VI.]  OF   THE    EXCLUSION    OF   EVIDENCE.  319 

the  effect  of  a  writing,  we  have  already  seen  that  the  rule,  subject 
to  the  modifications  whicli  were  stated  under  it,^  is  inflexible,  that 
extrinsic  verbal  evidence  is  not  admissible,  at  law,  to  contradict 
or  alter  a  written  instrument.  In  equity,  the  same  general  doc- 
trine is  admitted  ;  subject,  however,  to  certain  other  modifications, 
necessarily  required  for  that  relief  which  Equity  alone  can  afford. 
For  equity  relieves,  not  only  against  fraud,  but  against  accidents 
and  the  mistakes  of  parties ;  and  whenever  a  written  instrument, 
in  its  terms,  stands  in  the  way  of  this  relief,  it  is  obvious  that 
parol  evidence  ought  to  be  admitted,  to  show  that  the  instrument 
does  not  express  the  intention  of  the  parties,  or,  in  other  words,  to 
control  its  written  language  by  the  oral  language  of  truth.  It 
may  express  more,  or  less,  than  one  of  the  parties  intended ;  or, 
it  may  express  something  different  from  that  which  they  both  in 
tended ;  in  either  of  which  cases,  and  in  certain  relations  of  the 
parties  before  the  court,  parol  evidence  of  the  fact  is  admissible 
as  indispensable  to  the  relief.  The  principle  upon  which  such  evi- 
dence is  admitted  is,  not  that  it  is  necessary,  for  the  sake  of  jus- 
tice, to  violate  a  sound  rule  of  law  by  contradicting  a  valid  instru- 
ment which  expresses  the  intent  and  agreement  of  the  parties; 
but,  that  the  evidence  goes  to  show,  that,  by  accident  or  mistake, 
the  instrument  does  not  express  their  meaning  and  intent ;  and  to 
establish  an  equity,  deJiors  the  instrument,  by  proving  the  exist- 
ence of  circumstances,  entitling  the  party  to  more  relief  than  he 
can  have  at  law,  or  rendering  it  inequitable  that  the  instrument 
should  stand  as  the  true  exponent  of  his  meaning.  These  facts 
being  first  established,^  as  independent  grounds  of  equitable  relief, 
the  court,  in  the  exercise  of  its  peculiar  functions  as  a  court  of 
equity,  will  proceed  to  afford  that  relief,  and,  as  incidental  to  or  a 
part  of  such  relief,  will  decree  that  the  instrument  be  so  reformed 
as  to  express  what  the  parties  actually  meant  to  express,  or  that  it 
be  cancelled,  or  held  void,  or  that  the  obligor  be  absolved  from  its 
specific  performance,  as  the  case  may  require.^ 

1  Ante,  Vol.  1,  §§  275-305.  3  This  important  distinction  was  advert- 

[*The   proof  must  be   such  as  will  ed  to  bv  Lord  Thurlow,  in  the  case  of  Irn- 

strike  all  minds  alike,  as  being  iinques-  ham  v'  Child,  1    Bro.  C.  C.  92,  and  was 

tionable,  and  free  from  reasonable  doubt,  afterwards  more  fully  expounded  by  Lord 

Tucker   v.    Madden,    44    Maine    R.    206;  Eldon,    in    Townsend    (Marq.)    v.    Stan- 

Hdeman  v.  Wright,  9  Ind.  R.  126;  Da-  groom,  6  Ves  328,  in  the  following  terms : 

vidson  V.  Greer,  3  Sneed,  384 ;  Ruffner  v.  "  It  cannot  be  said,  that  because  the  legal 

McConnell,    17  111.  R.  212;  Linn  v.  Bar-  import  of  a  written  agreement  cannot  be 

key,  7  Ind.  R.  69.     See  Leuty  v.  Hillas,  varied  by  parol  evidence,  intended  to  give 

2  De  G.  &  J.  110.]  it  another  sense,  therefore  in  Equity,  when 


320 


LAW   OF   EVIDENCE   IN   EQUITY. 


[part  VI. 


§  361.    Therefore,  where  the  bill  is  for  the  specific  performance 
of  a  contract  in  writing,  parol  evidence  is  admissible  in  equity  to 


once  the  Court  is  in  possession  of  the  legal 
sense,  there  is  nothing  more  to  inquire  in- 
to.    Fraud  is  a  distinct  case,  and  perhaps 
more  examinable  at  Law  ;  but  all  the  doc- 
trine of  the  Court,  as  to  cases  of  uncon- 
scionable   agreements,    hard    agreements, 
agreements    entered   into   by   mistake   or 
surprise,  which  therefore  the  Court  will 
not  execute,  must  be  struck  out,  if  it  is 
true,  that,  because  parol  evidence  should 
not  be  admitted  at  Law,  therefore  it  shall 
not  be  admitted  in  Equity  upon  the  ques- 
tion, whether,  admitting  the  agreement  to 
be  such  as  at  Law  it  is  said  to  be,  the 
party  shall  have  a  specific  execution,  or  be 
left  to  that  Court,  in  which,  it  is  admitted, 
parol  evidence  cannot  be  introduced.     A 
very    small    research    into   the   cases    will 
show   general   indications    by  Judges    in 
Equity,  that   that  has  not  been  supposed 
to  be  the  law  of  this  Court.     In  Henkle  v. 
The  Royal  Exchange  Assurance  Co.  (I 
Ves.  317),  the  Court   did   not  rectify  the 
policy  of  insurance ;  but  they  did  not  re- 
fuse to   do   so   upon  a  notion,  that,  such 
being  the  legal  effect  of  it,  therefore  this 
Court  could  not  interfere  ;  and  Lord  Hard- 
wicke  says  expressly,   there  is  no  doubt 
the   Court  has  jurisdiction  to  relieve   in 
respect  of  a  plain  mistake  in  contracts  in 
writing,  as  well  as  against  frauds  in  con- 
tracts ;  so  that  if  reduced  into  writing  con- 
trary to  the  intent  of  the  parties,  on  proper 
proof,   that  would   be   rectified.     This  is 
loose   in   one   sense,  leaving   it   to  every 
Judge   to   say,  whether  the  proof  is  that 
proper  proof  that  ought  to  satisfy  him ; 
and  every  Judge,  who  sits  here  any  time 
must  miscarry  in  some  of  the  eases,  when 
acting  upon  such  a  principle.    Lord  Hard- 
wicko,  saying  the  proof  ought  to  be  the 
strongest  possible,  leaves  a  weighty  cau- 
tion to  future  Judges.    This  inconvenience 
belongs  to  the  administration  of  justice, 
that  the  minds  of  ditlerent  men  will  differ 
upon  the  result  of  the  evidence;  which 
may  lead  to  different  decisions  upon  the 
sarne  case.     In    Lady   Shelhurnc  v.  Lord 
Inchi^uin    (1    Hro.   C.   C.  338)  it  is  clear 
Lord   Tiuiriow  was  influenced  by  this,  as 
the  doctrine  of  the  Court;  saying  (1  Bro. 
C.  C.  341)  it  was  impossible  to  refuse,  as 
incompetent,  parol  evidence,  which  goes  to 
prove,  that  the-  words  taken  down  in  writ- 
ing were  contrary  to  the  coiu-urrcnt  inten- 
tion of  ail  parties;  but  he  also  thought  it 
was   to  be  of  the  highest  nature;  for  he 
adds,  that  it  must  be  irrefragable  evidence. 
He  therefore  seems  to  say,  that  the  ])roof 
must  satisfy  the  Court  what  was  the  con- 
current  intention   of  all    parties ;  and   it 


must  never  be  forgot,  to  what  extent  the 
defendant,  one  of  the  parties,  admits  or  de- 
nies the  intention.  Lord  Thurlow  saying, 
the  evidence  must  be  strong,  and  admit- 
ting the  difficulty  of  finding  such  evidence, 
says,  he  docs  not  think  it  can  be  rejected 
as  incompetent.. 

"  I  do  not  go  through  all  the  cases,  as 
they  are  all  referred  to  in   one  or  two  of 
the  last.     In   Rich  v.  Jackson,  there  is  a 
reference  to  Joynes  v.  Statham,  and  a  note 
of    that  case   preserved   in    Lord    Hard- 
wicke's  manuscript.     He  states  the  propo- 
sition in  tlie  very  terms  ;  that  he  shall  not 
confine  the   evidence    to  fraud  ;  that  it  is 
admissible  to  mistake  and  surprise  ;  and  it 
is  very  singular,  if  the  Court  will  take  a 
moral  jurisdiction  at  all,  that  it  should  not 
be  capable  of  being  applied  to  those  cases, 
for  in  a  moral  view  there  is  a  very  little  dif- 
ference between  calling  for  the  execution 
of  an  agreement  obtained  by  fraud,  which 
creates    a   surprise  upon  the   other  party, 
and    desiring    the    execution  of  an  agree- 
ment, which  can  be  demonstrated  to  have 
been  obtained  by  surprise.     It  is  impossi- 
ble to  read  the  report  of  Joynes  o.  Stat- 
ham,   and  conceive   Lord    Hardwicke    to 
have  been  of  opinion,  tliat  evidence  is  not 
admissible  in  such  cases  ;  though  I  agree 
with  Lord  Rosslyn  that  the  report  is  inac- 
curate.    Lord  Rosslyn  expressly  takes  the 
distinction  between  a  person   coming   into 
this  Court,  desiring  that  a  new  term  shall 
be  introduced  into  an  agreement,  and  a 
person    admitting  the  agreement,  but  re- 
sisting the  execution  of  it  by  making  out 
a  case  of  surprise.     If  that  is  made  out, 
the  Court  will  not  say  the  agreement  has 
a  different  meaning  from  that  wiiieii  is  put 
upon   it ;   but   su])posing  it   to   have    that 
meaning,  under  all  the  circumstances  it  is 
not  so  much  of  course  that  this  Court  will 
specifically   execute  it.     The  Court  must 
be  satisfied,  that  under  all  the  circumstan- 
ces it  is  equitable  to  give  more  relief  than 
the   plaintiff  can   have   at  law  ;  and   that 
was  carried  to  a  great  extent  in  Twining 
V.   Morrice  (-1  Bro.   C.  C  326).     In  that 
case  it  was  impossible  to  impute  fraud, 
mistake,  or  negligence  ;  but  Lord  Kenyon 
was  satisfied  the  agreement  was  obtaineil  by 
surprise  ujion  tliird  persons  ;  which  tliere- 
fore    it   was    uneonscientious    to    execute 
against  the  other  party  interested   in   the 
question.     It  has  been   decided   frecpicntly 
at  law,  that  there  could  be  no  such   thing 
as  a  puffer  at  an   auction.     That   whetiier 
right  or  wrong,  has  been    much   disputed 
here.     (Conolly  v.  Parsons,  3  Ves.  (.'li.  U. 
G23,    note.)     In    that   case  we  contended, 


PART  VI.]        OF  THE  EXCLUSION  OF  EVIDENCE.  321 

show,  that  by  mistake,  not  originated  in  the  defendant's  own  gross 
carelessness,  the  writing  expresses  something  materially  different 
from  his  intention,  and  that  therefore  it  would  be  unjust  to  en- 
force him  to  perform  it.^  Thus,  where  a  bill  was  filed  for  the  spe- 
cific performance  of  an  agreement  to  convey  certain  premises, 
which,  as  the  defendant  alleged,  included,  by  mistake,  a  parcel  not 
intended  to  be  conveyed  ;  parol  evidence  of  this  fact  was  admitted, 
and  the  bill  was  thereupon  dismissed.^  So,  where  the  bill  was  for 
the  specific  performance  of  an  agreement  to  make  a  lease,  upon  a 
certain  rent ;  the  defendant  was  admitted  to  show,  by  oral  evi- 
dence, that  the  rent  was  to  be  a  clear  rent,  the  plaintifi"  paying  all 
taxes.  And  where  a  mortgage  was  intended  to  be  made  by  two 
deeds,  the  one  absolute,  and  the  other  a  defeasance,  which  latter 
the  mortgagee  omitted  to  execute,  the  mortgagor  was  admitted  to 
show  the  mistake.  And  in  these  cases  it  makes  no  difference  in 
the  principle  of  relief,  whether  the  omission  is  charged  as  a  pure 
and  innocent  mistake,  or  as  a  fraud.^  But  the  mistake  must  be  a 
mistake  of  fact ;  for  as  to  mistakes  of  law,  though  the  decisions 
are  somewhat  conflicting,  yet  the  weight  of  authority  is  now 
clearly  preponderant,  that  mere  mistakes  of  laiv  are  not  remedi- 
able, except  in  a  few  cases,  peculiar  in  their  character,  and  involv- 
ing other  elements  in  their  decision.* 

that  all  the  parties  in  the  room  ought  to  a  written  agreement,  upon  surprise  and 

know  the  law.     Lord  Kenyon  would  not  mistake,  as  well  as  fraud  ;  proper,  irrefrag- 

hear   us  upon  that ;  and  I  do  not  much  able  evidence,  as  clearly  satisfactory  that 

wonder  at  it ;  but  Blake  being  the  com-  there  has  been  mistake  or  surprise,  as  in 

mon   acquaintance   of  both   parties,    and  the  other  case,  that  there  has  been  fraud, 

liaving  no  purpose  to  bid  i'or  the  vendor,  I  agree,  those  producing  evidence  of  mis- 

unfortunatcly  was  employed  to  bid  for  the  take  or  surprise,  either  to  rectify  an  agrce- 

vendee  ;  and  others,  knowing  that  he  was  ment,  or  calling  upon  the  Court  to  refuse 

generally  employed  for  the  vendor,  tliought  a  specific   performance,  undertake  a   case 

the  bidding  was  for  him.     Lord  Kenyon  of  great  difficulty  ;  but  it  does  not  follow, 

said,  that  was   such  a  surprise  upon  the  that  it  is  thei'etbre  incompetent  to  prove 

transaction  of  the  sale,  that  he  would  leave  the  actual  existence  of  it  by  evidence."     6 

the  parties  to  law  ;  and  yet  it  was  impossi-  Ves.  .333-3.39. 

ble  to  say,  that  the  vendee  appointing  his  ^  King  v.   Hamilton,  4  Pet.  311,  328; 

friend,  without  the  least  notion,  much  less  Western   R.   R.   Co.   v.  Babcock,  6   Met. 

intention,  that   the   sale  should  he  preju-  346 ;    Adams,    Doctr.    of    Eq.    p.    84  ;    1 

diced,  was  fraud,  surprise,  or  anytiiing  that  Story,   Eq.  Jur.  §§152-156;  Ante,  Vol. 

could  be  characterized  as  morally  wrong.  1,  §  296  a. 

That  case  illustrates  the  principle,  tliat  -  Calverley  v.  Williams,  1  Ves.  210. 
circumstances  of  that  sort  would  prevent  ^  Joynes  v.  Statham,  3  Atk.  388  ;  Ma- 
a  specific  performance ;  and  that  it  is  com-  son  v.  Armitage,  13  Ves.  25.  And  see 
petent  to  this  Court,  at  least  for  the  pur-  Rich  v.  Jackson,  4  Bro.  C.  C.  514 ;  6  Ves. 
pose  of  enabling  it  to  determine  whether  it  334,  S.  C  ;  Townsend  (Marq.)  v.  Stan- 
will  specifically  execute  an  agreement,  to  groom,  6  Ves.  328  ;  Hunt  v.  Rousmaniere, 
receive  evidence  of  the  circumstances  un-  8  Wheat.  174,  211  ;  Brainerd  v.  Brainerd, 
der  which  it  was  obtained  ;  and  I  will  not  15  Conn.  575;  Fishell  i>.  Bell,  1  Clark, 
say,  there  are  not  cases,  in  which   it   may  37. 

be  received,  to  enable  the  Court  to  rectify  *  Hunt  v.  Rousmaniere,  1  Pet.  15  ;  Bank 
VOL.  III.                              21 


322  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

§  862.  Upon  the  same  general  principle  of  equitable  relief, 
where  the  bill  seeks  that  a  contract  may  be  rescinded,  or  cancelled, 
or  given  up,  parol  evidence  is  admissible  to  prove  extraneous  facts 
and  transactions,  inconsistent  with  the  terms  of  the  contract,  and 
thus  indirectly  contradicting  them.^ 

§  363.  So,  where  the  bill  is  brought  to  reform  a  ivritten  instru- 
ment of  contract,  or  of  conveyance,  whether  it  be  executory  or  exe- 
cuted being  immaterial,  parol  evidence  is  generally  admissible  to 
show  a  mistake  in  the  instrument.  But  the  proof  in  this  case 
must  be  of  a  mutual  mistake ;  for  though  a  mistake  on  one  side 
may  be  a  ground  for  rescinding  a  contract,  or  for  refusing  to  en- 
force its  specific  performance,  it  is  only  where  the  mistake  is  mu- 
tual that  equity  will  decree  an  alteration  in  the  terms  of  the  in 
strument.2  Whether  this  ought  to  be  done  upon  merely  verbal 
evidence,  where  there  is  no  previous  article  or  memorandum  of 
agreement  or  other  proof  in  writing,  by  which  to  reform  the  in- 
strument, has  sometimes  been  doubted,  but  is  now  no  longer  ques- 
tioned. The  written  evidence  may  be  more  satisfactory,  but  the 
verbal  evidence  is  clearly  admissible;  for  the  written  evidence 
may  be  only  a  letter,  or  a  memorandum,  of  no  higher  degree,  in 
legal  estimation,  than  oral  testimony,  though  more  distinct  and 
certain  in  the  conviction  it  may  produce.  It  is  therefore  only  re- 
quired that  the  mistake  be  either  admitted,  or  distinctly  proved, 
to  the  satisfaction  of  the  court ;  and  though  the  undertaking  may 
be  one  of  great  difficulty,  especially  against  the  positive  denial  of 
the  answer,  yet  the  reported  cases  show  that  this  may  be  done. 
The  language  of  the  learned  Judges  on  this  point  implies  no  more 
than  this,  that  in  determining  wliether  such  proof  has  been  given, 

United  States  v.  Daniel,  12  Pet.  32,  55  ;  Story,  Eq.  Jur.  §§  155,  157.     And  see  the 

1    Storv,  E(}.  Jur.  116.      [*  McAninch  v.  notes   to  Wooliam  t'.  Hcani,  in  White  & 

Laii;;lirin,   13    Peiin.  St.    11.    371;    contra,  Tiulor's  Leiulinj;   Cases  in  K<iuity    (Am. 

Wyche  x.'Croen,  IG  Geo. II.  49,  58.     There  ed.),  by  llarc  &  Wallace,  Vol.  2,  Part  1, 

is  "ft    <,'reat    dirt'ereuce    between    introdu-  pp.  546- 596,  where  all  the  eases  on    this 

cint;  j7arol   evidence    for    the   purpose   of  subject  arc  collected   and  reviewed.     [But 

sho'%viu<?  that    the    writing  docs    not    ex-  Equity  will  interfere  only  as  between  the 

press   the  true  Intention  of  tiie  parties  and  original   parties,  or  those  claiming  under 

introducing  it  for  the   purpose  of  showing  them   in  jirivity  ;  such  as  personal  reprc- 

thc  circuinstances   which  make   it  inequi-  sentatives,  heirs,  devisees,  legatees,  assi;;n- 

table    and    unconscientious    that    the    in-  ees,  voluntary  grantees,  or  judgmetit  ered- 

tention   should  be  carried  out.     Stouten-  itors,  or  jjurchasers  from  them  with  notice 

burgh  I,'.    Tompkins,  1   Stockton  Ch.  (N.  of  the  facts.    As  iigainst //fW./;V/r  j.iinha.s- 

J.)  332.1  t''"''   ''J'"  '^  valuable  consi/lcration   without 

1  1    Storv,   Eq-  Jnr.  161  ;  2   Story,  Eq.  notice,  Courts  of  Equity  will  grant  no  re- 

•lur.   §   694''[*Ib.   Iledtield's   Ed.    Vol.    I,  lief      1    Story,  Va\.  ,hir.  §   165,  and  cases 

§§  694,  6'.»4  (/)  ;  Mitford's  Plead,  in  Va\.  p.  cited.]    [*  Also  same,  Kcdlield's  Ed.  §§  164 

103  (3d  ed.)  ;    Bovce  v.  Orundy,  3  Pet.  210.  a  -  164  ^,  and  notes  containing  the  latest 

'•*  Adams,  Doctr.   of  Equity,  p.   171  ;  1  cases.] 


PART  VI.] 


OF  THE  EXCLUSION  OF  EVIDENCE. 


323 


great  weight  will  be  allowed  to  what  is  properly  sworn  in  the  an- 
swer.^ But  whetlier,  in  a  bill  to  reform  a  written  instrument,  and 
in  the  absence  of  any  allegation  or  charge  of  fraud,  and  on  the 
ground  of  accident  and  mistake  alone,  verbal  evidence  is  admissi- 
ble to  prove  a  distinct  and  independent  agreement,  not  mentioned 
or  alluded  to  in  the  written  instrument,  to  do  something  further 
than  is  there  stated,  and  which  the  Statute  of  Frauds  requires  to  he 
proved  by  zoriting,  is  a  point  involved  in  no  little  doubt,  by  the 
decided  cases.  In  those  which  have  fallen  under  the  author's 
notice,  the  evidence  has  been  held  admissible,  in  cases  not  within 
the  statute;^  but  in  regard  to  those  to  which  the  statute  applies, 
the  decisions  in  England  are  not  uniform,  neither  are  those  in  the 
United  States ;  but  the  weight  of  modern  opinions  in  the  former 
country  seems  opposed  to  the  admission  of  parol  evidence,  and  in 
this  country  is  in  its  favor.^     It  is,  however,  universally  agreed, 


1  Ibid.  And  see  Gillespie  v.  Moon,  2 
Johns.  Ch.  58.5,  600,  where  this  point  was 
considered,  and  the  authorities  reviewed. 
See  also  Townsend  v.  Stangroom,  6  Ves. 
328;  Shclburne  v.  Inchiquin,  1  Bro.  Ch. 
C.  338,  341  ;  Barstow  v.  Kilvinj^ton,  5 
Ves.  .593  ;  Newson  v.  Bufferlow,  1  Dev. 
Ch.  R.  379 ;  Inskoe  ?'.  Proctor,  6  Monr. 
311.  Where  the  mistake  alle(;ed  in  the 
bill  is  admitted  in  the  answer,  hut  the  an- 
swer sets  up  an  agreement  different  from 
that  alleg:ed  in  the  hill,  parol  evidence  is 
admissible  to  prove  what  was  the  real 
afrrcement.  Wells  v.  Hodjjjc,  4  J.  J. 
Marsh.  120.  How  far  a  Court;  of  Equity 
ought  to  be  active  in  granting  relief  by  a 
specific  performance,  in  favor  of  a  party 
seeking,  first,  to  reform  the  contract  by 
parol  evidence,  and  then,  in  the  same  bill, 
to  obtain  performance  of  it  as  thus  re- 
formed, is  a  point  upon  which  learned 
Judges  have  held  different  opinions.  The 
English  Judges  have,  on  various  occasions, 
refused  to  grant  the  relief  prayed  for  un- 
der such  circumstances ;  and  at  other 
times  have  expressed  strong  opinions 
against  it.  But  in  this  country,  as  will 
be  seen  in  the  note  below,  the  weight  of 
opinion  is  in  favor  of  granting  the  relief; 
and  it  has  accordingly  been  gi-anted. 
Gillespie  v.  Moon,  supra;  Keisselbrack  v. 
Livingston,  4  Johns.  Ch.  144  ;  Bellows 
V.  Stone,  14  N.  Hamp.  175.  And  see 
1  Story,  Eq.  Jur.  §  161  ;  Ante,  Vol.  1, 
§  296  u ;  Wooden  v.  Haviland,  1 8  Conn. 
101. 

2  Baker  v.  Paine,  1  Ves.  456,  was  an 
agreement  for  the  sale  of  goods,  between 
vendor  and  purchaser.     And  see  Bellows 


V.  Stone,  14  N.  Hamp.  175;  Wesley  v. 
Thomas,  6  H.  &  J.  24. 

^  In  the  following  Knglish  cases  verbal 
evidence  was  admitted  ;  namely,  in  Rogers 
V.  P^arl,  1  iJick.  294,  to  rectify  a  mistake 
of  the  solicitor,  in  drawing  a  marriage 
settlement;  in  Thomas  v.  Davis,  Id.  301, 
to  rectify  a  mistake  in  a  conveyance,  by 
the  omission  of  one  of  the  parcels  of  land 
intended  to  be  conveyed;  in  Sims  v.  Urry, 
1  Ch.  Ca.  225,  to  prove  a  mistake  in  the 
penal  sum  of  a  bond,  by  writing  it  ./'-"'.y 
instead  of  four  hundred  pounds,  for  which 
latter  sum  the  heir  of  the  obligor  was  ac- 
cordingly charged. 

But  such  evidence  was  rejected,  or  held 
inadmissible,  in  Harwood  v.  Wallis,  cited 
in  2  Ves.  195,  where  it  was  proposed  to 
prove  a  mistake  in  drawing  a  marriage 
settlement,  and  thereby  to  exclude  all  the 
daughters  of  a  second  marriage ;  in  Wool- 
lam  V.  Hcarn,  7  Ves.  211,  where  it  was  pro- 
posed to  prove  a  parol  agreement  for  a  lower 
rent  than  was  inserted  in  the  lease,  which 
was  for  seventeen  vears ;  and  in  Att.-Cjen. 
V.  Sitwell,  1  Y.  &'C.  559,  582,  583,  where 
it  was  attempted  to  show  by  parol  evidence 
that,  in  a  contract  with  the  crown  for  tiic 
sale  of  the  manor  of  Eckington,  with  the 
appurtenances,  the  advowson  was  omitted 
by  mistake.  [In  this  case,  Baron  Alder- 
son,  in  delivering  his  judgment,  said  :  "  I 
cannot  help  feeling,  that  in  the  case  of  an 
executory  agreement,  first  to  reform  and 
then  to  decree  an  execution  of  it,  would 
be  virtually  to  repeal  the  Statute  of  Frauds. 
The  only  ground  on  which  I  think  the 
case  could  have  been  put,  would  have  been 
that  the  answer  contained  an  admission  of 


524 


LAW   OF   EVIDENCE   IN  EQUITY. 


[part  VI. 


that  the  statute  interposes  no  obstacle  to  relief  against  fraud^ 
whether  actual  or  constructive ;  and,  therefore,  Courts  of  Equity 


the  agreement  as  stated  in  the  bill ;  and 
the  parties  mutually  agreeing  that  there 
w:is  a  mistake,  the  case  might  have  fallen 
within  the  [irinciple  of  those  cases  at  law, 
where  there  is  a  declaration  on  an  agree- 
ment not  within  the  statute,  and  no  issue 
taken  upon  the  agreement  by  the  plea ; 
because,  in  such  case,  it  would  seem  as  if, 
the  agreement  of  the  parties  being  admitted 
by  tiie  record,  the  case  would  no  longer 
be  within  the  statute.  I  should  then  have 
taken  time  to  consider,  whether  according 
to  the  dicta  of  many  venerable  Judges,  I 
should  not  have  been  authorized  to  reform 
an  executory  agreement  lor  the  conveyance 
of  an  estate,  where  it  was  admitted  to  have 
been  the  intention  of  both  parties  that  a 
portion  of  the  estate  was  not  to  pass.  But 
in  my  present  view  of  the  question,  it 
seems  to  me  that  the  Court  ought  not,  in 
any  case,  where  the  mistake  is  denied,  or 
not  admitted  by  the  answer,  to  admit  parol 
evidence,  and  upon  that  evidence  to  reform 
an  executory  agreement."] 

In  the  following  American  cases,  also, 
verbal  evidence,  in  cases  wnthin  the  Statute 
of  Frauds,  was  held  inadmissible  :  Dwight 
V.  Pomeroy,  17  Mass.  .303,  where  the  plain- 
tiff, being  a  creditor  of  an  insolvent  debtor, 
who  had  executed  a  deed  of  assignment  in 
trust  for  the  benefit  of  his  creditors,  filed 
his  bill  against  the  trustees  to  reform  an 
alleged  mistake  in  the  trusts  expressed  in 
the  deed.  So,  in  Elder  v.  Elder,  1  Fairf. 
80,  where  the  written  agreement  was  for 
the  conveyance  of  a  "  lot  of  land  in  Wind- 
ham, formerly  owned  by  J.  E.,"  and  the 
phiintilT  j)roposed  to  prove  by  parol  that  it 
was  inteiided  to  include  the  adjoining  land 
in  \Vestl)rook,  under  the  same  ownership, 
but  tliat  this  was  omitted  l)y  mistake.  In 
Osborn  v.  Phelps,  19  Conn.  63,  an  agree- 
ment ibr  the  sale  of  lands  was  drawn  in 
two  separate  instruments  ;  one  to  be  signed 
by  the  vendor,  and  the  other  by  the  pur- 
cliaser,  and  neitlier  of  the  instruments  con- 
taining any  reference  to  the  other;  but 
each  was  signed  by  the  wrong  party  by 
mistake,  which  the  plaintiff  sought  to  ])rove 
by  parol  evidence,  but  the  Court  ( Ellsworth, 
J.,  strcniie  disscnticnlt')  held  it  inadmissible. 
lint  in  other  American  cases  such  evi- 
dence, upon  great  consideration,  has  been 
lieid  admissilile.  The  j)rin(ipal  of  these  is 
Gillespie  r.  Moon,  "2  Jolins.  (;h.  58.'),  which 
was  a  bill  for  relief,  and  for  the  reconvey- 
ance of  a  parcel  of  land,  which  had  been 
included,  by  mistake  or  fraud,  in  a  deed  of 
conveyance ;  and  upon  general  grounds, 
after  a  review  of  the  cases  by  the  learned 
Chancellor  Kent,  verbal  evidence  of  the 


mistake  was  admitted,  and  a  reconveyance 
decreed.  So  in  Tilton  v.  Tilton,  9  N. 
Hamp.  385,  where  tenants  in  common 
agreed  to  make  partition  pursuant  to  a 
verbal  award,  and  executed  deeds  accord- 
ingly ;  but  in  the  deed  to  the  plaintiff  a 
parcel  assigned  to  him  was  omitted  by 
mistake,  and,  in  a  bill  for  relief,  verbal 
evidence  of  the  mistake  was  held  admis- 
sible, and  relief  thereupon  decreed.  So,  in 
Langdon  v.  Keith,  9  Verm.  299,  where, 
upon  the  transfer  of  a  part  only  of  several 
promissory  notes  secured  by  mortgage,  an 
assignment  of  the  mortgagee's  entire  in- 
terest in  the  mortgage  was  made  by  mis- 
take, instead  of  a  part ;  and  relief  was  de- 
creed, upon  the  like  proof.  So,  in  De 
Reimer  v.  Cautillon,  4  Johns,  Ch.  85, 
where  a  portion  of  the  land  purchased  at 
a  sheriff' 's  sale  was,  by  mistake,  omitted 
in  his  deed  to  the  purchaser;  and,  upon 
parol  evidence  of  the  fact,  the  judgment 
debtors  were  decreed  to  convey  to  the  pur- 
chaser the  omitted  parcel.  And  see  Keis- 
selbrack  v.  Livingston,  4  Johns.  Ch.  144 ; 
1  Story,  Eq.  Jur.  §  161,  and  notes  ;  Hogan 
V.  Del.  Ins.  Co.,  1  Wash.  C.  C.  R.  422; 
Smith  V.  Chapman,  4  Conn.  344  ;  Watson 
V.  Wells,  5  Conn.  468 ;  Chamberlain  v. 
Thompson,  10  Conn.  243;  Wooden  v. 
Haviland,  18  Conn.  101. 

In  several  cases  the  evidence,  upon  which 
the  mistake  was  corrected,  was  partly  ver- 
bal and  partly  in  writing,  the  former  being 
admitted  without  objection.  See  Exeter 
V.  Exeter,  3  My.  &  Cr.  321 ;  Shipp  v. 
Swann,  2  Bibb,  82. 

In  others,  usually  cited  upon  the  point 
in  question,  the  evidence  was  in  letters,  or 
other  writings,  signed  by  the  jiarty  in 
whose  favor  the  mistake  was  nnule.  See 
Randall  i:  Randall,  2  P.  Wms.  464  ;  Bar- 
stow  V.  Kilvington,  5  Ves.  593;  Bedford 
V.  Abercorn,  1  My.  &  Cr.  312  ;  Jalabert  v. 
Chandos,  1  Eden^372;  Pritchard  v.  Quin- 
chant,  Ambl.  147. 

In  other  cases,  also,  frequently  cited  in 
this  connection,  the  bill  sought  a  specific 
performance  of  the  contract  as  it  was  writ- 
ten ;  in  which  case,  as  the  Court  is  not 
bound  to  decree  a  performance  unless  the 
plaintitt'  is  equitably  entitled  to  it.  under 
all  the  circumstances,  it  is  everywhere 
agreed  that  verbal  evidence  is  admissible, 
on  the  part  of  the  defendant,  to  show  that 
the  writing  does  not  express  the  real  intent 
of  the  parties.  Sec  Rich  i'.  Jackson,  4 
Bro.  Ch.  C.  514  ;  6  Ves.  334,  n. ;  Clark  r. 
Grant,  14  Ves.  519  ;  Iligginson  v.  Clowes, 
15  Ves.  516;  Clinan  v.  Cooke,  1  Sch.  & 
Lefr.  22.     |In  Wood  v.  Midgley,  27  Eng. 


PART  VI.]  OF   THE   EXCLUSION    OF   EVIDENCE.  325 

have  always  unhesitatingly  relieved  parties  against  deeds  and 
other  instruments,  which  have  been  fraudulently  made  to  express 
more  or  less  than  was  intended  by  the  party  seeking  relief.  It  is 
difficult  to  perceive  any  moral  or  equitable  distinction  between  a 
fraud  previously  conceived,  and  afterwards  consummated  in  the 
execution  of  the  instrument,  and  a  fraud  subsequently  conceived, 
and  attempted  to  be  consummated  by  an  iniquitous  literal  adher- 
ence to  the  terms  of  an  instrument,  which,  by  accident  or  mis- 
take, does  not  express  what  was  intended.  Nor  is  it  easy  to  dis- 
cern any  substantial  reason  why  Equity  should  not  treat  both  as 
alike  fraudulent,  and  relieve,  on  the  same  principle,  as  well  against 
the  one  as  against  the  other.  Surely  there  can  be  no  moral  differ- 
ence between  cheating  another  by  purposely  betraying  him  into  a 
mistake,  and  cheating  him  by  taking  advantage  of  a  mistake 
already  accidentally  made. 

§  364.  Parol  evidence  is  also  admitted  in  Equity,  to  prove  that 
a  deed  of  conveyance,  made  absolute  by  mistake  or  accident,  was 
intended  only  as  a  mortgage.  This  evidence  has  always  been  ad- 
mitted in  bills  to  redeem,  in  which  mode  the  point  usually  occurs  ; 
but  the  principle  of  admissibility  is  applied  to  other  cases  of  mis- 
take and  accident,  as  well  as  of  fraud,  wherever  justice  and  equity 
require  its  application.^  Such  evidence  is  also  admitted  to  prove 
a  parol  agency  for  the  purchase  of  lands,  in  order  to  raise  a  trust 
for  the  benefit  of  the  principal,  where  the  agent  has  purchased  and 
taken  the  conveyance  in  his  own  name.^  So,  in  a  bill  to  reform  a 
bond,  and  for  relief,  parol  evidence  is  admissible  to  prove  that  the 
bond,  made  joint  by  mistake,  was  intended  to  be  joint  and  sev- 
eral;  or  that  the  name  of  the  wrong  person  was  inserted  as 
obligee.^ 

Law  &  Eq.  Rep.  206,  the  bill  averred  that  v.  Merrills,  1  Day,  139  ;  Slee  v.  Manhatten 

the  defendant  entered  into  an  agreement  Co.,  1  Paige,  48 ;  Marks  v.  Pell,  1  Johns, 

to  purchase  an  estate,  the  terms  "of  which  Ch.  395.     And  see  2  Cruise's  Dig.  tit.  15, 

were  to  be  reduced  to  writing,  and  signed  ch.  1,  §  11,  n.  1  (Greenleaf's  ed.)  ;  James 

by  the   parties   the  next  morning.     The  v.  Johnson,  6  Johns.  Ch.  417;   Henry  v. 

bill  also  alleged  that  the  defendant  paid  Davis,  7  Johns.  40;    Clark  v.  Henry,  2 

fifty  pounds  as  a  deposit,  and  took  a  re-  Cowen,  324 ;   Whittick  v.  Kane,  1  Paige, 

ceipt,  but  that  he  had  refused  to  complete  202  ;  Irnham  v.  Child,  1  Bro.  Ch.  C.  92, 

the  purchase,  and  had  never   signed    the  and  cases  in  Perkins's  notes ;  2  Story,  Eq. 

agreement.      The   plaintiff  prayed   for   a  Jur.  §§  768,  1018. 

specific  performance.     The  defendant  de-         '^  Jenkins  v.  Eldredge,  3  Story,  R.  181, 

murred  to  the  bill  on  the  ground  that  the  285,  292,  293  ;  Morris  v.  Nixon,  1  How.  S. 

case  came  within  the  Statute  of  Frauds,  C.  R.  118;  17  Pet.  109,  S.  C. 
and  the  objection  was  sustained.]  ^  Wiser  v.  Blachly,  1  Johns    Ch.  607; 

1  Strong  V.  Stuart,  4  Johns.  Ch.  167;  1  Story,  Eq.  Jur.  §  164.     [See  also  United 

Jovncs  V.  Statham,  3  Atk.  389  ;  1  Pow.  on  States')'.  Price,  9  How.  U.  S.  83 ;  Weaver 

Mortg.  120,  151  (Rand's  ed.; ;  Washburn  v.  Shryock,  6  Serg.  &  R.  262;    Stiles  v. 


826  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

§  365.  In  cases  of  trusts,  it  has  already  been  stated  that  the 
Statute  of  Frauds  requires  that  they  be  proved  by  some  writing, 
but  tliat  this  relates  only  to  express  trusts,  intentionally  created 
by  the  parties,  and  not  to  resulting  and  implied  trusts^  arising  out 
of  collateral  facts.  Such  facts,  therefore,  may  be  proved  by  parol 
evidence.^  And  though  tlioy  go  to  contradict  the  terms  of  a  deed, 
yet  if  they  also  go  to  prove  fraud,  parol  evidence  is  admissible,  in 
order  to  ''  force  a  trust  upon  the  conscience  of  the  party."  ^  And 
irrespective  of  any  allegation  of  fraud,  it  has  been  settled,  upon 
great  consideration,  that  parol  evidence  is  admissible  to  prove  that 
the  purchase-money  for  an  estate  was  paid  by  a  third  person,  other 
than  the  grantee  named  in  the  deed,  in  order  to  establish  a  trust 
in  favor  of  him  who  paid  the  money.^  It  is  also  admissible  to 
charge  a  trust  upon  an  executor,  or  a  devisee,  who  has  prevented 
the  testator  from  making  provisioii  in  his  ivill  for  the  plaintiff,  by 
expressly  and  verbally  undertaking  with  the  testator,  to  fulfil  his 
wishes  in  that  respect,^  or  by  fraudulently  inducing  him  to  make  a 
new  will  without  such  provision,^  or  the  like ;  the  will  thus  pro- 
cured being  in  favor  of  the  defendant,  as  executor,  devisee,  or 
legatee.  And  in  some  cases  of  trusts  imperfectly  expressed,  parol 
evidence  has  been  held  admissible  in  explanation  of  the  intent. 
Thus,  where  a  testator  devised  his  estate  to  his  wife,  "  iiaving  a 
perfect  confidence  that  she  will  act  up  to  those  views  which  I  have 
communicated  to  her,  in  the  ultimate  disposal  of  my  property  after 
her  decease  "  ;  the  wife  afterwards  died  intestate  ;  and  a  bill  was 
filed  by  his  two  natural  children  for  relief,  against  his  lieir  and 
next  of  kin,  and  her  heir  and  administrator,  alleging  that  the  tes- 
tator, at  the  time  of  making  his  will,  desired  his  wife  to  give  the 

Brock,  1  Penn.  St.  115;  Moser  v.  Liben-  any  man  in  England  out  of  his  estate, 
quctte,  2  llawle,  428  ;  Jones  v.  Beacli,  2  AtkI  so  at  last  every  case  in  Court  will 
l)e  G.,  M.  &  Gord.  886.]  become  casus  pro  aiiiico."  Judge  Story 
1  Ante,  Vol.  1,  §  266.  [In  Cook  v.  thinks  this  is  stating  the  doctrine  a  little 
Fountain,  3  Swanst.  R.  .58.5,  Lord  Not-  too  .strong.  2  Story,  Eq.  Jur.  §  1195. 
tiiigliani  said  :  "  There  is  one  good,  gen-  -  2  Story,  Eq.  Jur.  §  1195. 
cral,  inlallible  rule,  that  goes  to  both  these  ^  See  Boyd  v.  McLean,  1  Johns.  Ch. 
kinds  of  trusts.  (lie  had  included  all  582,  where  the  cases  on  this  point  are 
trusts  in  two  kinds,  —  cxjjress  or  implied.)  collected  and  reviewed  by  Kent,  Ch.  See 
It  is  such  a  general  rule  as  never  deceives ;  also  Botsford  ?'.  Burr,  2  Johns.  Ch.  405; 
a  general  rule  to  which  there  is  no  excep-  2  Story,  E(i.  Jur.  §  1201,  n.  ;  Piilsl)ury  v. 
fion  ;  and  that  is  this:  the  law  never  l'illsl)ury,  5  Shcpl.  107  ;  l^unncls  f.  Jack- 
implies,  the  Court  never  presunu-s,  a  trust  son,  1  How.  .'JoS ;  I  Spencc,  E(p  Jur.  Clum. 
but   in    case   of  absolute   necessity.     The  [571]. 

reason  of  this  rule  is   sacred;    for  if  the  *  Oldham   v.    Litchfield,    2    Vern.    506. 

Chancery  do  once  take  liberty  to  construe  And  see  Hcech  r.  Kcnniirate,  Ambl.  67; 

a  trust  by  iniplicntion  of  law,  or  to  presume  Drakeford  v.   Wilks,  3  Atk.  539. 

a  trust  unnecessarily,  a  way  is  ojiened  to  ^  Tliynn  v.  Thytin,  1    Vern.  296.     See 

the  Lord  Chancellor  to  construe  or  presume  also  2  Story,  Eq.  Jur.  §  781. 


PAKT  VI.]        OF  THE  EXCLUSION  OF  EVIDENCE,  327 

whole  of  his  estate,  after  her  death,  to  the  plaintiffs,  and  that  she . 
promised  so  to  do ;   parol  evidence  was  admitted  in  proof  of  this 
allegation.^ 

§  366.  In  certain  cases  of  presumptions  of  law,  also,  parol  evi- 
dence is  admitted  in  equity  to  rebut  them.  But  here  a  distinction 
is  to  be  observed  between  those  presumptions  which  constitute  the 
settled  legal  rules  of  construction  of  instruments,  or,  in  other  words, 
conclusive  presumptions^  where  the  construction  is  in  favor  of  the 
instrument,  by  giving  to  the  language  its  plain  and  literal  effect ; 
and  those  presumptions  which  are  raised  against  the  instrument, 
imputing  to  the  language,  prima  facie,  a  meaning  different  from 
its  literal  import.  In  the  latter  class  of  cases,  parol  evidence  is 
admissible  to  rebut  the  presumption,  and  give  full  effect  to  the 
language  of  the  instrument ;  but  in  the  former  class,  where  the 
law  conclusively  determines  the  construction,  parol  evidence  is  not 
admissible  to  contradict  or  avoid  it.  Thus,  where  the  same  spe- 
cific thing  is  given  twice  to  the  same  legatee,  in  the  same  will,  or 
in  the  will  and  again  in  a  codicil,  and  where  two  pecuniary  lega- 
cies of  equal  amount  are  given  to  the  same  legatee  in  one  and  the 
same  instrument,  the  second  legacy  in  each  case  is  presumed  to 
be  a  mere  repetition  of  the  first ;  but  as  this  presumption  is  against 
the  language  of  the  will,  parol  evidence  is  admissible,  where  the 
subject  is  capable  of  such  proof,  to  show  that  the  second  bequest 
was  intended  to  be  additional  to  the  first.  Such  would  be  the 
case,  where  the  bequests  were  of  sums  of  money,  or  of  things  of 
wliicli  the  testator  had  several ;  as,  for  example,  one  of  his  horses, 
without  a  particular  specification  of  the  animal .^  But  where  two 
legacies  of  quantities  unequal  in  amount,  are  given  to  the  same 
person  by  the  same  instrument,  or  where  two  legacies  are  given, 
simpliclter,  to  the  same  person  by  different  instruments,  whether 
the  amounts  or  quantities  in  the  latter  case  be  equal  or  unequal, 
tlie  law  conclusively  presumes  the  second  bequest  to  be  additional 
to  the  first ;  and  this  construction  being  in  favor  of  the  language 
of  the  instrument,  by  a  positive  rule  of  law,  parol  evidence  will 
not  be  admitted  to  control  it.^     The  rule,  in  short,  amounts  to 

1  Podmore  v.  Gunning,  7  Sim.  644;  5  Ves.  368,  380,  and  by  Sir  E.  Sugden,  in 
Sim.  485,  S.  C.     [Dyer  v.  Dyer,  2  Cox,  Hall  v.  Hill,  1   Con.  &  Law.   149,   150. 
E.  92.]  ^  Ibid.     And  see  Hooley  v.   Hatton,    1 

2  1  Sponce,  Eq.  Jur.  Chan.  p.  [566] ;  Bro.  C.  C.  390,  n. ;  Foy  v.  Foy,  1  Cox, 
Coote  r.  Boyd,  2  Bro.  C.  C.  521,  527,  528,  163  ;  Baillie  v.  Buttcrtield,  Id.  392  ;  Hurst 
per  Ld.  Tlmrlow ;  us  expounded  by  Ld.  v.  Beach,  5  Madd.  351;  Hall  v.  Hill,  1 
Alvanlcy,  in   Osborne   v.  D.  of  Leeds,  5  Con.   &  Law.    120,    138,  156;  1  Dru.  & 


328  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

this ;  that  parol  evidence  is  not  admissible  to  p-ove  that  the  party 
did  not  mean  what  he  has  said  ;  but  that,  when  the  law  presumes 
that  he  did  not  so  mean,  parol  evidence  is  admissible  to  prove  that 
he  did,  by  rebutting  that  presumption  ;  it  not  being  conclusive, 
but  disputable.  And  the  rule  is  applied,  not  only  to  cases  purely 
testamentary,  but  to  cases  where  there  was  first  a  will  and  then  an 
advancement,!  or  first  a  debt,  and  then  a  will,^  as  well  as  to 
others. 

§  367.  The  parol  evidence  mentioned  in  the  preceding  section, 
as  inadmissible,  refers  to  the  verbal  declarations  of  the  party. ^  In 
both  classes  of  the  cases  referred  to,  parol  evidence  is  clearly  ad- 
missible to  show  any  collateral  facts  relating  to  the  party,  such  as 
his  family,  fortune,  relatives,  situation,  and  the  hke,  from  wliich 
the  meaning  of  the  instrument  in  question  can  be  collected.*  And 
where  the  language  is  clear,  and  there  is  no  presumption  of  law  to 
the  contrary,  yet  the  question  of  intent  remains  to  be  collected 
from  the  entire  instrument;  and  two  bequests  in  the  same  will 
may  be  ascertained  to  be  either  cumulative  or  substitutionary,  ac- 
cording to  the  mternal  evidence  of  intention  thus  collected.^ 

§  368.  Fourthly,  as  to  the  objection,  that  the  tvitness  is  ineom- 
petent'to  testify  in  the  cause.  Tlie  competency  of  the  parties  in  a 
suit  in  equity,  as  witnesses,  and  the  mode  of  obtaining  their  testi- 
mony having  already  been  considered,^  it  remains  only  to  speak  of 
the  competency  of  other  witnesses.  On  this  point,  the  general  rule 
in  equity  is  the  same  as  at  law,  witnesses  being  held  incompetent 
in  both  courts,  by  reason  of  deficiency  in  understanding,  deficiency 
in  religious  principle,  infamy,  or  interest.^  A  slight  diversity  of 
practice,  in  the  mode  of  taking  the  objection,  will  alone  require  a 
brief  notice  in  this  place. 

§  369.  In  proceedings  at  law,  an  objection  to  the  competency 
of  a  witness  may  be  taken  in  any  stage  of  the  cause,  previous  to 

War.  9-1,  S.  C. ;  Lee  v.  Paine,  4  Hare,  201,  ^  Ree  ante,  Vol.  1,  §§  289,  296  ;  Guy  v. 

216 ;  Brown  v.  Sclwin,  Cas.  temp.  Talbot,  Sliarpe,  1  My.  &  K.  .589. 

240.  *  Ibid.       The    "  cinum.stance.s    of    the 

1  Roswcll  V.  Bennett,  3  Atk.  77  ;  Biylcs-  case,"  which  Chancellor  Kent  helil  adniis- 
ton  V.  Gnibb,  2  Atk.  48  ;  Monck  v.  Monck,  sible,  in  Dewitt  v.  Yates,  10  Johns.  I.'ie, 
1  Ball  &  B.  298 ;  Shudal  v.  Jekyll,  2  Atk.  undoubtedly  were  the  collateral  (acts  hero 
515,  alluded  to,  since  he  refers  to  no  others,  in 

2  Fowler   r.  Fowler,  3    P.  Wms.    3.53;  delivcrin<r  his  judy:nicnt. 

Wallace  v.  Ponifrct,    11    Ves.    .')42.     The  ^  Busscll    /'.    Dickson,  2  Dm.  &  War. 

cases  on  this  snlycct  are  reviewed,  and  the  133,  is  an  exanijile  of  this  kind, 

whole  doctrine  is' fullv  and  ahlv  discussed  ^  .S/z/jra,  §§  313  -  318. 

by  Lord    Chancellor"  Sugden,"in  Hall  v.  ^  See  ante,  Vol.  1,§§  365-430. 
Hill,  supra. 


PART  VI.]        OF  THE  EXCLUSION  OF  EVIDENCE.  329 

its  being  committed  to  the  jury,  provided  it  be  taken  as  soon  as 
the  ground  of  it  is  known  to  the  party  objecting.^  The  same  rule 
applies  to  examinations  vivd  voce  in  equity.  But  where  the  testi- 
mony is  taken  by  depositions,  the  practice  is  somewhat  varied. 
The  ancient  forms  of  interrogatories  included  a  question  whether 
the  witness  was  or  was  not  interested  in  the  event  of  the  suit ;  but 
the  more  modern  practice,  when  ground  of  incompetency  is  sus- 
pected, is  to  file  a  cross-interrogatory.  And  though  the  modern 
rule  is,  that  the  proper  time  for  examination  to  competence/  is  before 
publication,  interrogatories  to  credit  alone  being  allowed  after  pub- 
lication ;  2  yet,  where  an  objection  to  the  competency  is  discovered 
by  the  party  after  publication,  it  may  be  taken,  even  at  the  hear- 
ing, if  it  be  taken  as  soon  as  it  is  discovered,  and  before  the  depo- 
sition is  read.^  And  this  is  done,  not  by  exhibiting  articles,  as 
in  the  ordinary  case  of  discrediting  a  witness,  but  by  motion  for 
leave  to  examine  as  to  the  point  of  competency,  upon  affidavit  of 
previous  ignorance  of  the  fact.*  If  the  witness  has  been  cross-ex- 
amined after  he  was  known  by  the  party  to  be  incompetent,  this  is 
a  waiver  of  the  objection  ;  ^  and  the  burden  of  proof  seems  to  be 
on  the  objector,  to  show  that,  at  the  time  of  the  examination,  he 
had  7iot  a  knowledge  of  the  existence  of  the  ground  of  objection 
to  his  competency.^ 

1  Ante,  Vol.  1,  §  421.  Necdham   v.  Smith,  2  Vern.  463.      And 

2  Callaghan  v.  Rochfort,  3  Atk.  643  ;  see  Stokes  v.  M'Kerral,  3  Bro.  Ch.  C.  228 ; 
Purcell  V.  McNamara,  8  Ves.  324 ;  Mills  v.  Rogers  v.  Dibble,  3  Paige,  238.  So,  if 
Mills,  12  Ves.  406  ;  Perigal  v.  Nicholson,  the  ground  of  objection  appears  from  the 
Wightw  63;  Vanghan».Worrall,2  Swanst.  deposition  itself,  it  maybe  taken  at  the 
395,  398,  399.  Where  a  paiiy  is  examined  hearing,  before  the  deposition  is  read, 
as  a  witness  between  the  parties  in  a  suit,  Perigal  v.  Nicholson,  supra. 

subject  to  all  just  exceptions,  an  objection  *  Callaghan  v.  Rochfort,  supra. 

to  his  testimony  may  be  taken  at  the  hear-  ^  Ante,  Vol.  1,  §  421  ;  Supra,  §  350,  note, 

ing.     Mohawk  Bank  w.  Atwater,  2  Paige,  ^  Vaughan  v.  Worrall,  2  Swanst.400,  per 

60.  Lord  Eldon.    And  see  Fen  ton  v.  Hughes, 

3  Callaghan  v.   Rochfort,  3  Atk.   643 ;  7  Ves.  290. 


LAW   OF   EVIDENCE   IN   EQUITY.  [PART  YL 


CHAPTER    lY. 

OP  THE  WEIGHT  AND  EFFECT  OF  EVIDENCE. 

[*  §  370.  Answer  as  an  admission  of  defendant. 

371.  Weight  to  be  given  to  examination  of  parties,  in  taking  account. 

372.  Accounting  party  may  sometimes  discharge  himself,  upon  his  own  oath. 

373.  Greater  weight  given  to  facts  admitted  by  parties  than  to  evidence  aliunde. 

374.  Facts  admitted  on  belief  of  party  only  who  is  personally  interested  in  knowing. 

375.  Testimony  of  witnesses,  how  weighed. 

376.  Using  a  portion  of  a  conversation  or  correspondence  gives  a  credit  to  the 

whole. 

377.  Witnesses  shown  to  adverse  party  entitled  to  greater  credit  than  those  whose 

names  are  unknown  until  deposition  is  published. 

378.  Maxim,  Falstis  in  unofalsus  in  omnibus,  has  a  juster  application  in  chancery 

than  in  law. 

379.  Effect  of  affidavits  to  be  considered. 
380,381.   Requisites  of  an  affidavit. 
382,  383.   W^ho  may  take  affidavits. 

384.  Effect  given  to  affidavits  chiefly  in  admitting  them  as  a  foundation  for  ulterior 

proceedings. 

385.  Full  credit  given  to  plaintiff's  affidavit  where  it  is  required  to  support  ex  parte 

application  for  immediate  relief.] 

1.   ADMISSIONS. 

§  370.  In  regard  to  the  effect  to  be  given  to  an  ansiver  in 
chancery^  when  read  in  evidence,  we  have  seen  that  the  rule  in 
equity  is  somewhat  different  from  the  rule  at  law.^  This  diversity 
arises,  not  from  a  difference  in  the  principles  recognized  in  the  two 
kinds  of  tribunals,  but  from  their  different  modes  of  proceeding, 
and  the  different  circumstances  under  which  the  answer  is  offered 
in  evidence.  In  chancery,  the  plaintiff  reads  the  admissions  in  the 
answer  in  the  same  cause,  merely  as  adnuHnions  in  pleadings,  of 
facts  wliich  he  therefore  is  under  no  necessity  to  prove.  He  is  con- 
sequently only  bound  to  read  entire  ])ortions  of  such. parts  of  the 
answer  as  he  would  refer  to  for  that  purpose  ;  or,  in  other  words, 

1  Supra,  §  281. 


PART  VI.]    OF  THE  WEIGHT  AND  EFFECT  OF  EVIDENCE. 


331 


the  principal  passage  in  question,  and  such  others  as  are  explana- 
tory of  it,  or  are  essential  to  a  perfect  understanding  of  its  mean- 
ing.i  In  other  respects,  and  so  far  only  as  it  is  responsive  to  the 
bill,  it  is  evidence  in  the  cause.  But  when  an  answer  in  chan- 
cery is  read  in  a  court  of  law,  it  is  read  in  a  different  cause,  be- 
tween other  parties,  or  between  the  same  individuals  in  another 
forum,  and  in  another  and  different  relation  ;  and  it  is  offered  and 
regarded,  not  as  a  pleading,  but  as  evidence  of  declarations  and 
admissions  of  facts,  previously  made  in  another  place,  by  the 
party  against  whom  it  is  offered ;  and  in  this  view,  it  comes  with- 
m  the  principle  of  the  rule  respecting  declarations  and  admis- 
sions in  general,  namely,  that  the  whole  must  be  taken  together.^ 
The  distinction  here  adverted  to  is  observed  only  in  the  cause  in 
which  the  answer  was  given  ;  for  even  in  chancery,  when  the  an- 
swer of  a  party  in  another  cause  is  offered  as  evidence,  the  whole 
of  it  becomes  admissible,  like  other  documents  made  evidence  in 
the  cause.3  Every  part,  however,  is  not  legally  entitled  to  equal 
credit,  merely  because  the  whole  is  admitted  to  be  read  ;  but 
each  part  of  the  statement  receives  such  weight  as,  under  all 
the  circumstances,  it  may  seem  to  deserve. 

§  371.  In  taking  an  account,  before  the  master,  the  examination 
of  the  parties  is  entitled  to  peculiar  weight  and  effect.  For 
though,  when  one  party  is  examined  as  a  witness  against  another 
party,  in  the  cause,  he  stands  in  tlie  situation  of  any  other  wit- 
ness, and  may  be  cross-examined  by  the  adverse  party,  but  his 
testimony  cannot  be  used  in  his  own  favor  ;  yet,  when  he  is  exam- 
amined  before  a  master,  in  relation  to  his  own  rights  in  the  cause, 
the  examination  is  in  the  nature  of  a  bill  of  discovery  ;  there  can 
be  no  cross-examination  by  the  counsel ;  and  he  cannot  testify  in 
his  own  favor,  except  so  far  as  his  answers  may  be  responsive  to 
the  interrogatories  propounded  to  him  by  the  adverse  party.  To 
this  extent,  his  answers  are  evidence  in  his  own  favor,  on  the 
same  principle  that  the  answer  of  a  defendant,  responsive  to  the 
bill,  is  evidence  against  the  complainant.  And  any  explanations, 
necessary  to  prevent  any  improper  inference  from  his  answer,  will 

1  Supra,  §§  281,  284,  285.  88  -  92.     And  see  Mr.  Emmett's  argument 

^  Supra,    §§281,    290;    Ante,    Vol.    1,  in  1  Cowen,  744,  n.,  quoted  with  approba- 

§§  201,  202;  Bartlett  r.  Gillard,  3  Russ.  tion  by  Marcy,  J.,  in  Forsyth  v.  Clark,  3 

156  ;  Davis  r.  Spurling,  1  Russ.  &  My.  64  ;  Wend.  64.3. 

2  Poth.  Obi.  by  Evans,  App.  No.  xvi.  sec.  ^  Boardman  v.  Jackson,  2  Ball  &  Beat. 

4,  p.  137  ;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  386  ;  Hart  v.  Ten  Eyck,  supra. 


382  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

be  regarded  as  responsive  to  the  interrogatory.     The  same  effect  is 
allowed  to  answers  given  upon  an  examination  vivd  voce} 

§  372.  Where  the  account  is  of  long  standing,  the  court  will 
sometimes  give  peculiar  effect  to  the  oath  of  the  accounting  party, 
by  a  special  order,  allowing  him  to  discharge  himself,  on  oath,  of 
all  such  matters  as  he  cannot  prove  by  vouchers,  by  reason  of 
their  loss.^  So,  where  one  of  several  executors  or  trustees  has  di- 
vested himself  of  the  assets  or  trust  funds,  by  delivering  them 
over  to  his  co-executors  or  co-trustees,  the  court  will,  in  a  proper 
case,  permit  him  to  discharge  himself  by  his  own  oath,  instead  of 
exhibiting  interrogatories  for  the  examination  of  the  others.^  But 
this  is  allowed  only  under  special  circumstances,  and  by  special 
directions ;  without  Avhich  the  master  will  not  be  authorized  to 
permit  a  party  to  discharge  himself,  by  his  own  oath,  from  the 
sums  proved  to  have  come  to  his  hands.'*  In  the  case,  however,  of 
small  sums,  under  forty  shillings,  it  is  an  old  rule  in  chancery  to 
permit  an  accounting  party  to  discharge  himself  by  his  own  oath, 
stating  the  particular  circumstances  of  the  payments,^  and  swear- 
ing positively  to  the  fact,  and  not  merely  to  his  belief.^ 

§  373.     In    considering   the   testimony  in   the   cause,   greater 
weight  and  effect  is  given  to  facts  admitted  hy  the  parties  than  to 

1  Benson  v.  Le  Rov,  1  Paine,  122.  And  Vern.  283  ;  Marshfield  v.  Weston.  2  Vern. 
sec  Arnisbv  !'.  Wood,  1  Hopk.  229;  Hoi-  176;  Kemsen  v.  Kemsen,  2  Johns.  Ch. 
lister  r.  EiiVklev,  II  N.  Hamp.  .nOl.  And  501;  O'Neil  v.  Hamill,  1  Ho,nan,  183. 
altlioun-h  it  is  well  settled,  that  where  a  And  see  Wichcrley  v.  Wicherley,  1  Vern. 
book  or  ])aper  is  produced  hy  a  party,  from  470  ;  2  Dan.  Ch.  Pr.  1425  [*  3d  Anier. 
which  he  is  charjicd,  the  same  book  or  pa-  Ed.  1225].  In  some  of  the  United  States, 
per  may  be  read  by  way  of  discliarue;  the  same  rule  is  adopted  in  trials  at  law, 
Darston"  (.'.  Lord  Oxford.  I  Eq.  Cas.  Abr.  in  the  proof  of  char>res  by  books  of  ac- 
10;  Baylev  v.  Hill,  Ih.  ;  Boardman  i'.  count,  with  the  suppletory  oath  of  the 
Jackson,  2*  Ball  &  Beat.  382  ;  Blount  v.  party.  Union  Bank  v.  Knapp,  3  Pick. 
Burrow,  4  Bro.  Ch.  Cas.  75  ;  I  Ves.  546,  S.  109  ;  Dunn  v.  Whitney,  1  Fairf.  15  ;  Ante, 
C. ;  yet  he  will  not  be  permitted  to  dis-  Vol.  1,  §  118,  n.  In  the  settlement  of  ad- 
charge  himself  bv  a  separate  affidavit  ;  ministration  accounts  in  the  Probate  Court, 
Ridn;ewav  I'.  Darwin,  7  Ves.  404  ;  norby  a  thoiioh  the  executor  or  administrator  is 
separate 'and  indc|)cndent  statement"  of  bound  to  verify  the  account  by  his  oath, 
fact  in  his  examination,  not  responsive  to  yet  he  is  not  therefore  a  competent  witness, 
anv  interrogatory.  Higbee  v.  Bacon,  8  upon  his  own  motion,  to  support  the  items 
Pick.  484.  of  account,  except  as  to  small  charj;cs  un- 

'•2  Pevton  V.  Green,  1   Eq.   Cas.   Ab.  11  ;  dcr  forty   shillings.     Bailey  r   BlniRhard, 

Holtscomb  P.  Hivers,  1  Ch.  Cas.  127.  12  Pick".   166.     In  New    York,    the    same 

■M)iiH's  r.  Scott,  1  Turn.  &Uuss.  358  ;  2  ihictrine    is    recognized;    but    the   sum    is 

Dan.  (Ml.  I'r.  1428,  1429   [* 3d  Amer.  Ed.  fixed  by  statute  at  twenty  dollars.     Wil- 

1228,  1229].  liams  v.  Purdy,  6  Paige,  166. 

*  ibid.     It  has  been  held  sufficient  for  a         "  Bobinson  v.  Cumniings,   2   Atk.  410. 

servant  or  an  apprentice,  in  answer  to  a  [*  Books  of  account  kept  by  a  trustee  and 

bill  for  an  account,  to  say  in  general,  that  lier  agents  may  lie  admitted  as  evidence  of 

whatever  he  rcccivcil  was  by  him  received  disbursements  in  reference  to  the  trust  es- 

nnd  laid  out  again  hv  his  m'aster's  orders,  tate,  where  the  trustee  could  not  jiroduc-o 

Potts  r.  Potts,  1  Vern.  207.  strict  vouchers.     Cookes  v.  Cookcs,  9  Jur. 

6  1   Eq.   Cas.  Al)r.  11,  pi.  13  ;  Anon.  1  N.  S.  843.] 


PART  VI.J    OF  THE  WEIGHT  AND  EFFECT  OF  EVIDENCE.        333 

ey'idencQ  almnde  ;  and  greater  regard  is  due  to  solemn  admissions 
in  judicio  than  to  admissions  by  the  parties  en  pais.  Admissions 
in  the  pleadings,  and  other  solemn  admissions  in  judicio,  are 
likened  to  algebraic  formulce,  or  as  substitutes  for  proof,  to  be  re- 
ceived by  the  judge  in  order  to  facilitate  the  final  decision  of  the 
cause  ;  and  are  deemed  more  satisfactory  than  if  found  by  a  jury, 
and  equally  conclusive  upon  the  parties.^  The  court,  in  such 
cases,  will  only  require  to  be  satisfied  that  the  admission  was  un- 
derstandingly  and  advisedly  made,  either  in  the  pleadings,  or  in 
the  cause,  as  a  substitute  for  proof,  and  without  fraud,  in  order  to 
hold  the  parties  conclusively  to  it ;  without  permitting  it  to  be  re- 
tracted, except  by  consent,  in  any  subsequent  stage  of  the  proceed- 
ings, or  upon  a  rehearing  of  the  cause.  And  whether  made  by 
the  party  in  person,  or  made  by  his  counsel,  is  immaterial ;  the 
remedy  of  the  party  being  only  against  his  counsel,  except  upon 
proof  of  fraud.^  From  admissions  of  this  conclusive  kind,  the 
court  will  infer  any  other  facts  naturally  deducible  from  them; 
and  when  the  facts  thus  inferred  are  so  necessarily  connected  with 
the  facts  admitted,  that,  if  disproved,  the  admissions  would  thereby 
be  nullified,  the  evidence  offered  to  disprove  them  will  be  rejected. 
Thus,  if  it  be  admitted  that  a  certain  woman  is  a  widow  of  an  in- 
dividual named,  their  marriage  and  his  death  are  also  facts  which 
the  court  would  conclusively  infer.  And  if  the  admission  of  fact 
be  made  in  the  defendant's  answer,  but  the  fact  thus  legally  to  be 
inferred  from  it  be  expressly  denied  in  the  answer,  the  admission 
will  be  acted  upon  by  the  court,  notwithstanding  the  denial. 
Thus,  where  the  case,  as  set  forth  in  the  answer,  showed  that  the 
plaintiff  had  an  interest  in  the  subject  of  controversy,  the  defend- 
ant was  ordered  to  pay  money  into  court  upon  the  strength  of  that 
admission,  notwithstanding  the  denial  of  such  interest  in  the  an- 
swer.^ So  where  a  bill  was  filed  for  the  specific  performance  of 
an  agreement  to  grant  a  lease,  and  also  for  an  injunction  to  re- 
strain an  ejectment  brought  by  the  defendant  against  the  plaintiff; 
and  the  answer  admitted  that,  when  the  defendant  let  the  plaintiff 
into  possession  of  the  premises,  it  was  his  own  expectation,  and 

1  Ante,  Vol.  1,  §§  186,  20.5,  527  d.  was  held,  that  the  deed   was  conclusive 

2  Bradish  v.  Gee,  Ambl.  229.  To  a  evidence  that  in  it  all  the  precedent  treaties 
bill  to  have  a  jointure  made  up  to  a  cer-  and  agreements  were  merged.  Bellasis  v. 
tain  sum,  according  to  a  parol  agreement  Benson,  1  Vern.  369. 

before  marriage,  the  defendant  pleaded  in  ^  Domville  v.  Solly,  2  Russ.  372.  And 
bar  that  a  settlement  was  made  by  a  deed,  see  Thomas  v.  Visitors,  &c.,  7  G.  &  J. 
subsequent  to  the  parol  agreement;  and  it     369. 


o34  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

probably  that  of  the  plaintiff,  that  the  holding  would  last  as  long 
as  the  alleged  term,  but  that  neither  party  was  bound ;  the  court 
held  the  defendant  bound  by  this  admission  of  the  agreement,  and 
refused  to  dissolve  the  injunction.^  And,  on  the  principle  under 
consideration,  if  the  defendant  puts  in  a  plea  in  bar  of  the  bill,  and 
the  plaintiff  does  not  reply,  but  sets  down  the  plea  for  argument, 
the  matter  of  the  plea  will  be  conclusively  taken  for  true.^ 

§  374.  Though  the  solemn  admissions  of  parties  are  regarded  as 
thus  conclusive,  and  though  facts  admitted  on  belief  only  are  ordi- 
narily received  as  true,  according  to  the  maxim,  that  what  the 
parties  believe  the  court  will  believe ;  yet  whether  this  rule  is  ap- 
plicable to  admissionn  made  by  an  executor  or  an  administrator^  upon 
his  belief  in  regard  to  the  liabilities  of  his  testator  or  intestate,  is 
a  point  not  perfectly  clear.  In  one  case,  where  a  bill  was  filed  by 
a  creditor  against  an  administrator,  who,  in  his  answer,  stated  that 
he  believed  the  debt  was  due  ;  though  the  Lord  Chancellor  was  in- 
clined to  think  this  sufficient,  yet  both  Mr.  Fonblanque,  of  counsel 
with  the  plaintiff,  and  Mr.  Richards,  as  amicus  curioe,  doubted 
whether  it  was  a  sufficient  foundation  for  a  decree  ;  and  an  inter- 
rogatory was  therefore  exhibited. ^  Belief  of  a  party  personally  in- 
terested in  hioiving,  seems  to  be  that  belief  which  is  intended  in  the 
maxim. 

2.    TESTIMONY   OF    WITNESSES. 

§  375.  In  estimating  the  weight  and  effect  to  be  given  to  the 
testimony  of  witnesses,  there  are  no  fixed  rules  of  universal  applica- 
tion ;  each  case  being  determined  by  the  judge,  in  his  discretion, 
according  to  its  own  circumstances.  Yet  it  has  been  judicially 
said,  that,  where  a  witness  against  the  moral  conduct  of  another 
is  under  a  necessity  of  first  exculpating  himself,  no  regard  ought 
to  be  given  to  his  evidence ;  *  that  the  positive  testimony  of  one 
credil)le  witness  to  a  fact  is  entitled  to  more  weight  than  that  of 
several  others  who  testify  negatively,  or,  at  most,  to  collateral 
circumstances,  merely  persuasive  in  their  character;^  and  that 
the  testimony  of  a  willing  and  uncorroborated  witness,  who  merely 
states  his  understanding  of  a  conversation  l)ct\vecn  the  parties,  is 
entitled  to  no  weight.^     If  a  witness  swears  that  he  never  heard  of 

1  Atwood    V.    Barham,     2     Kiiss.    186.  ♦  Watkyns  r.  Watkyns,  2  Atk.  97. 

And  sec  (ireslcy,  F>(|.  Kvid.  459,  460.  ^  Koniu-dy    v.     Kennedy,  2    Ala.    571  ; 

-  (iallaglicr  v.  Roberts,  I    Wash.  C.  C.  Todd  v.  Ilardie,  5  Aliu  698;  Littlefield  t'. 

R.  3^0.  Clark,  .'5  Desaus.  165. 

»  Hill  V.  Binney,  6  Vcs.  738.  "  Towell  v.  Swan,  5  Dana,  1. 


PART  VI.]    OF  THE  WEIGHT  AND  EFFECT  OF  EVIDENCE.        335 

a  certain  transaction  at  or  before  a  certain  time,  this  is  regarded 
as  a  negative  pregnant  that  he  did  hear  of  it  after  that  time.^  So, 
an  affirmation  by  a  vendor  that  he  did  not  recollect  his  having  au- 
thorized a  person  to  sign  his  name  to  a  covenant  for  title,  will  not 
be  deemed  either  a  denial  of  such  authority,  or  a  disbelief  that  it 
was  actually  given ;  and  further  proof  of  such  authority  will  not 
be  required,  if  the  owner  knew  of  the  sale  and  acquiesced  in  it.^ 

§  376.  It  is  a  general  rule,  applicable  not  only  to  evidence  of 
conversations  or  declarations,  but  to  correspondence  on  a  particular 
subject,  that  if  a  party  makes  use  of  a  portion  of  a  conversation  or 
correspondence,  he  thereby  gives  credit  to  the  whole,  and  author- 
izes the  adverse  party  to  use  at  his  pleasure  any  other  portion  that 
relates  to  the  same  subject.  But  it  does  not  follow  that  the  court 
is  bound,  therefore,  to  give  to  every  part  of  such  evidence  equal 
credit  and  weight ;  nor,  on  the  other  hand,  will  it  be  treated  as  an 
absolute  nullity  ;  but  if  it  be  not  entirely  neutralized  by  opposing 
evidence,  such  weight  will  be  attributed  to  it  as  on  the  whole  it 
may  deserve.^ 

§  377.  It  is  obvious,  also,  to  remark,  that  frequently  a  higher 
degree  of  credit  is  due  to  the  testimony  of  witnesses  who  have 
either  been  shoivn  to  the  adveise  party  previous  to  their  examina- 
tion, according  to  the  ancient  course  in  chancery,  or  sivorn  in  open 
court,  in  presence  of  the  proctor  on  the  other  side,  according  to 
the  practice  in  the  Ecclesiastical  Courts,  than  to  that  of  witnesses 
whose  names  were  unknown  to  the  adverse  party  until  their  depo- 
sitions were  published.  For  in  the  former  case  the  party  had 
ample  opportunity  to  ascertain  the  character  of  the  witness,  and  to 
impeach  it  if  unworthy  of  credit,  while  in  the  latter  this  was  im- 
possible. Yet  here,  also,  no  inflexible  rule  can  be  laid  down,  each 
case  being  chiefly  governed  by  its  own  circumstances. 

§  378.  The  maxin,  Falsus  in  unofalsus  in  omnibus,  has  a  juster 
application  to  witnesses  in  chancery  than  in  the  courts  of  common 
law.  For  in  the  latter  tribunals  the  witness  is  not  only  examined 
orally,  but  is  subjected  to  a  severe  and  rapid  cross-examination, 

1  "Walker  v.  Walker,  2  Atk  100.  to  prove   the   sending   of  certain    letters 

2  Talbot  i".  Sibree,  1  Dana,  56.  copied  therein,  does  not  entitle  the  dcfend- 

3  Gresley,  Eq.  Evid.  466 ;  Bartlett  v.  ant  to  read  other  letters  in  the  same 
Gillard,  3  Huss.  156.  This  rule  is  re-  book,  not  referred  to  in  those  which  have 
stricted  in  its  application  to  matters  relat-  been  called  for.  Sturge  v.  Buchanan,  10 
ing  to  the  portion  already  adiluccd  in  evi-  Ad  &  El.  598.  And  see  Prince  v.  Samo, 
dence.  Hence  the  production  of  a  letter-  7  Ad.  &  El  627  ;  Catt  v.  Howard,  3  Stark. 
book,  on  the  call  of  the  plaintiff,  in  order  R.  5 ;  Ante,  Vol.  1,  §  467. 


336  LAW   OF   EVIDENCE   IN   EQUITY.  [PAKT  VI. 

without  sufficient  time  for  reflection  or  for  deliberate  answers,  and 
hence  may  often  misrepresent  facts,  from  infirmity  of  recollection 
or  mistake  ;  in  wliich  case,  to  apply  the  maxim  in  extenso  to  his 
testimony  would  be  higbly  unjust.  Yet  such  mistakes  must,  of 
necessity,  detract  something  from  the  credit  due  to  his  accuracy, 
though  he  may  not  be  chargeable  with  moral  turpitude.  But 
where,  according  to  the  course  of  chancery,  the  testimony  of  the 
witness  is  taken  upon  interrogatories  in  writing,  deliberately  pro- 
pounded to  him  by  the  examiner,  no  other  person  being  present ; 
and  where  ample  time  is  allowed  for  calm  recollection,  and  any 
mistakes  in  his  first  answers  may  be  corrected  at  the  close  of  the 
examination,  when  the  whole  is  distinctly  read  over  to  him  ;  there 
is  ground  to  presume  that  a  false  statement  of  fact  is  the  result 
either  of  bad  design  or  of  gross  ignorance  of  the  truth,  and  culpa- 
ble recklessness  of  assertion  ;  in  either  of  which  cases  all  confi- 
dence in  his  testimony  must  be  lost,  or  at  least  essentially  impaired. 
If  the  statement  is  deliberately  and  knowingly  false  in  a  single 
particular,  the  credibility  of  the  whole  is  destroyed;  but  if  it  is 
erroneous  without  a  fraudulent  design,  the  credibility  is  impaired 
only  in  proportion  as  the  cause  of  the  error  may  be  chargeable  to 
the  witness  himself.^ 

3.    AFFIDAVITS. 

§  379.  The  effect  of  judicial  documents  having  been  considered 
in  a  former  volume,  it  only  remains  to  take  notice  of  the  nature, 
admissil)ility,  and  effect  of  affidavits,  in  cases  peculiar  to  proceed- 
ings in  chancery. 

§  380.  An  affidavit  is  "  a  declaration,  on  oath  or  affirmation, 
taken  before  some  person  having  competent  and  lawful  power  to 
administer  the  samc."^  It  is  essential  to  public  justice  that  an 
affidavit  be  so  taken  as  that,  if  false,  the  affiant  may  be  indicted 

1  The  maxim,  thon<rli  variously  ex-  examen  censetur  falsum,  ct  non  probat. 
pressed  hv  tlif  civilians,' has  reference  not  Nam  testis  non  debet  deiKjnere,  nisi  id 
onlv  to  falsehood  deliberately  perpetrated  quod  novit,  vel  vidit ;  et  in  hoc  non  potest 
in  "writin^rs,  but  to  mere  mistakes  in  an  pr;ctendcrc  iffnorantiam  Id.  n.  7. 
oral  examination.  Qui  in  rino,  imo  in  '-  3  Dan.  Ch  Pr.  1769  [*3d  Amcr.  Ed. 
piuribus,  minus  vera  wn/JSf-r//,  in  caeteris  IGSl]  ;  Mind.  Ch.  Pr.  4.')1.  [For  the 
credcndum  ei  non  est.  Menoeh.  Coneil.  opinion  of  Mr.  Vicc-Chancellor  Knight 
I,  n.  .'JOO  Falsum  praesumatur  commi-  Bruce  on  the  relative  value  of  evidence 
sisse,  qui  senicl  /hls<iriiis  fuit.  Id.  Coneil.  given  by  aflidavit  and  by  depositions  taken 
422,  n.  12,5.  Falsum  dictum,  a  testihus  in  on  written  interrogatories,  and  on  the  use 
uno,  et  in  aliqua  parte  sui  examinis,  to-  of  cross-examination,  see  Attorney-Cen- 
tum examen  reddat  falsum,  nee  probat ;  oral  v.  Carrington,  3  Kng.  Law  and  Eq.  R. 
Ma.scard.  I)c  Probationibus,  Concl.  744,  73  (4  Do  G.  &  S.  140)  ]  [*  A  bill  cannot 
n.  1;  etiamsi  testis  ignoranter  in  una  be  read  as  an  affidavit  on  a  final  hearing  of 
parte  deposuisset  falsum  ;  quia  tunc  totum  a  cause.     Airs  v.  Billop,  4  Jones,  Eq.  17.] 


PART  VI.]  OF   THE   WEIGHT   AND   EFFECT    OF  EVmENCE.  337 

and '  punished  for  perjury  ;  and  to  this  end  the  rules  of  practice 
respecting  the  form  and  requisities  of  affidavits  are  constructed. 
It  is  therefore  generally  required  in  chancery,  that  a  cause  be  first 
pending,  in  which  the  affidavit  is  to  be  used ;  and  hence,  if  it  be 
taken  before  the  bill  is  actually  filed,  it  cannot  be  read,  but  will 
be  treated  as  a  nullity.^  It  is  sufficient  that  it  be  in  terms  so  pos- 
itive and  explicit  as  that  perjury  may  be  assigned  upon  it.^  It 
must  be  properly  entitled;  for  an  affidavit,  made  in  one  cause, 
cannot  be  read  to  obtain  an  order  in  another;^  and  an  affidavit 
not  properly  entitled  as  of  a  cause  pending,  or  otherwise  appearing 
to  have  been  legally  taken,  cannot,  if  false,  be  the  foundation  of 
an  indictment  for  perjury.*  But  it  is  sufficient  if  it  was  correctly 
entitled  when  it  was  sworn,  though  the  title  of  the  cause  may 
afterwards  have  been  changed  by  amendment.^  It  is  also  suffi- 
cient, where  there  are  several  defendants,  if  it  states  the  name  of 
the  first,  adding,  "  and  others,"  without  naming  them  ;  if  there  be 
no  other  suit  pending  between  the  plaintiff  and  that  defendant  with 
others.^  It  is  also  proper,  though  not  indispensably  necessary, 
that  the  affidavit  of  any  person,  other  than  a  party  in  the  cause, 
should  state  the  true  place  of  residence  and  the  addition,  as  well 
as  the  name  of  the  affiant. 

§  381.  The  office  of  an  affidavit  is  to  bring  to  the  court  the 
knowledge  of  facts ;  and  therefore  it  should  be  confined  to  a  state- 
ment of  facts  only,  as  they  substantially  exist,  with  all  necessary 
circumstances  of  time,  place,  manner,  and  other  material  incidents. 
It  is  improper  to  state  conclusions  of  law,  or  legal  propositions, 
such  as,  that  a  legal  service  was  made,  or  legal  notice  given,  with- 
out stating  the  manner ;  or  that  the  party  has  a  good  defence, 
without  stating  the  nature  and  grounds  of  it ;  but  the  affidavit 
should  state  particularly  how  the  service  was  made  or  notice  given, 
and  what  are  the  grounds  and  merits  of  his  defence  or  claim, 
that  the  court  may  judge  of  the  legality,  and  whether  the  defence 
or  claim  is  well  founded  or  merely  imaginary ;  and  that  the  party 
may  be  criminally  proceeded  against,  if  the  statement  be  false.^ 

1  Hughes  V.  "Ryan,  1   Beat.  327  ;  Anon.  ^  Hawes  v.  Bamford,  9  Sim.  653. 

6  Madd.  276  ;  Supra,  §  190.  6  ^hite  v  Hess,  8  Paige,  544. 

Coals  V.  Chase,  1  Bland,  137;  Supra,  t  Meach  v.  Chappel,  8  Paige,  1.S5;  Sea 

§  '^f •  Ins.  Co.  V.  Stebbins,  Id.  563  ;  3  Dan.  Ch. 

^  Lumbrozoi;  White,  4  Dick.  150.  Pr.   1776   [*3d  Amer.  Ed.    1688].     And 

*  Hawley   v.    Donelly,    8    Paige,    415.  see  Pucker  y.  Howard,  2  Bibb,  166;  I)a- 

And  see  Stafford  v.  Brown,  4  Paige,  360;  vis  v.  Gray,  3  Lit.  451  ;  Thavcr  v.  Swift, 

Supra,  §  190.  Walk.  Ch    219  (Michigan).  "[*  Evidence 

VOL.  III.  22 


338  LAW   OF  EVIDENCE  IN  EQUITY.  [PART  VI 

It  must  not  state  arguments,  nor  draw  inferences,  nor  contain  oth- 
er irrelevant,  impertinent,  or  scandalous  matter  ;  otherwise  such 
matter  will  be  expunged  by  the  court,  with  or  without  reference 
to  a  master,  and  the  party  or  solicitor  will  be  punished  in  costs.^ 

§  382.  An  affidavit  must  also  be  stvorn  before  some  person 
authorized  by  law  to  administer  such  oaths  ;  and  generally  speak- 
ing, any  person,  authorized  to  take  depositions  or  to  examine 
witnesses  in  the  cause,  is  qualified  to  take  affidavits.^  Under  the 
laws  of  the  United  States,  regulating  the  practice  in  the  national 
tribunals,  this  authority  is  given  to  any  judge  of  any  court  of  the 
United  States,  any  chancellor  or  judge  of  any  superior  court  of 
a  State,  any  judge  of  a  county  court  or  court  of  common  pleas, 
or  mayor  or  chief  magistrate  of  any  city  in  the  United  States,  not 
being  of  counsel  nor  interested  in  the  suit;^  any  of  the  commis- 
sioners appointed  by  the  court  to  take  acknowledgments  of  bail 
and  affidavits  ;  and  any  notary  public*  And  an  affidavit,  taken 
out  of  court,  and  not  thus  sworn,  will  not  be  permitted  to  be 
used.^  Under  the  laws  of  the  several  States,  affidavits  to  be  read 
in  the  State  courts  may  generally  be  taken  before  any  judge  of  a 
court  of  record,  or  a  justice  of  the  peace.  Regularly,  an  affida- 
vit must  not  be  sworn  before  on  attorney  or  solicitor  in  the 
cause  ;^  but  in  some  States,  this  is  no  valid  objection,  if  he  is 
not  the  solicitor  of  record." 

§  383.  An  affidavit  may  also  be  read  in  the  State  tribunals  if 
taken  in  another  State  before  any  commissioner  appointed  to  take 
acknowledgments  and  administer  oaths  under  the  authority  of  the 
State  in  which  the  court  is  holden ;  or  before  a  master  in  chan- 
cery in  such  other  State,  though  not  such  commissioner  ;^  or  taken 

of  bclit'f  only  is  admissible  on  intcrlocu-  ^  Sec  on  this  subject,  o»^e,  Vol.  1,  §§322- 

tory  application,  tbouf^hnot  at  the  hearinfi  324  ;  Supra,  §§  251,  319. 

of  a  cause  ;  and  the  {^rounds  of  such  belief  »  Stat  U.  S.  1789,  ch.  20,  §  30  ;  Vol.  1, 

arc  properly  stated  in  the  affidavit,  even  in  p  88. 

the  case  where  such   grounds  consist    in  *  Stat.  U.   S.  1812,  ch.  25;  Vol.   2,  p. 

f;rcat  p.irt  of  conversations  with  third  per-  679  ;  Stat.  U.  S.  1850,  ch.  52. 

sons,  wlio  mi;:ht  he,  hut  are  not  produced,  ^  IIaij;ht  v.  Prop'rs  Morris  Aqueduct,  4 

aiid  where  the  (U'|)onent  swears  that  he  dis-  Wash.  601. 

believes  the  statements  made  to  him  liv  such  "   Hojran,    In  re,  3  Atk.  813;  Smith  v. 

persons.    Bird  v.  Lake,  1  H.  &  M.  lll.l  Woodroftc.  6  Price,  230;   9  Price,  478  ;  3 

1  Powell  r.  Kane,  5  Pai;:e,  265  ;  3  Dan.  Dan.  Ch.  Pr.  1771  |*3d  Amer.  Ed  1G82] ; 

Ch.     Pr.    1777    [*.'{d    .^mer.    Ed.    16891;  Wood  r.  Harper,  3  Beav.  290. 

Johson  c.  Leifrhton.  1  Dick.  112;  I'hillips  '  The    Peoi>le    v.   S|)auldinfj,   2    Paige, 

I'.    Miiilman,    Id     113.     But   an    affidavit  326;     McLaren     v.    Charrier,    5    Paige, 

will  not  be  referred  for  mere  impertinence,  530. 

after  an  affidavit  in  answer  to  it  has  been  ^  Allen  i'.   The  State  Bank,  1    Dcv.  & 

filed.     Burton,  fn  re,  I    Uuss   380  ;  Chim-  Bat.  7. 
elli  V.  Ohauvet,  1  Youngc,  384. 


PART  VI.]    OF  THE  WEIGHT  AND  EFFECT  OF  EVIDENCE.         339 

under  a  commission  issuing  out  of  the  court  where  the  cause  is 
pending ;  it  being,  in  this  case,  taken  under  the  authority  of  the 
court.^  If  it  appears  that  an  affidavit  has  been  taken  at  a  place 
out  of  the  jurisdiction  oi  the  magistrate  or  other  officer,  it  will  not 
be  received  ;  but  if  the  place  does  not  appear,  it  will  be  presumed 
to  have  been  properly  taken.^  Indeed,  an  affidavit  taken  out  of 
the  jurisdiction  of  the  court  will  seldom  be  rejected,  if  it  appears 
to  have  been  duly  sworn  before  a  person  authorized  to  adminis- 
ter such  oaths,  by  the  laws  of  the  country  of  his  residence ;  and 
it  will  be  sufficient  if  the  person  be  proved  to  have  been  at  the 
time  de  facto  in  the  ordinary  exercise  of  the  authority  he  as- 
sumes.^ In  all  these  cases,  the  liability  of  the  affiant  to  an  in- 
dictment for  perjury  does  not  seem  to  be  much  relied  on,  in  con- 
sidering the  admissibility  of  the  affidavit ;  but  in  many  States 
provision  is  made  by  law  for  the  punishment  of  false  swearing 
in  any  deposition  or  affidavit  taken  under  a  commission  from 
abroad. 

§  384.  The  iveight  and  effect  given  to  affidavits  is  chiefly  in  ad- 
mitting them  as  a  sufficient  foundation  for  ulterior  proceedings. 
Thus,  where  an  affidavit,  whether  of  the  party,  or  of  another  per- 
son, is  required  in  support  of  a  motion  or  a  petition  or  a  plea, 
which  is  its  proper  use  and  office,  it  is  ordinarily  received  for  that 
purpose  as  conclusive  evidence  of  tlie  facts  which  it  contains.  The 
like  effect  is  given  to  affidavits  in  inquiries  before  a  master,  wher- 
ever they  are  received,  no  affidavit  in  reply  being  read,  except  as 
to  new  matter,  which  may  be  stated  in  the  affidavits  in  answer, 
and  no  further  affidavits  being  read,  unless  specially  required  by 
the  master.^  They  are  also  received,  as  satisfactory  proof  of  ex- 
hibits at  the  hearing,  in  cases  already  mentioned.^  So,  in  certain 
cases  of  fraudulent  abstracting  of  tlie  plaintiff's  property  by  the 
defendant,  we  have  seen  that  the  amount  of  his  damages,  in  the 
absence  of  other  proof,  may  be  ascertained  by  the  affidavit  of  the 

1  Gibson  v.  Tilton,  1  Bland,  .352.  trate.     Hutcheon  v.  Mannington,  6  Ves. 

2  Parker  v.  Baker,  8  Vai'^c,  428 ;  Lam-     823. 

bert  r.  Maris,  Halst.  Diff.  p   173.  *  Onlers   of    April   3,    1828,    Ord.    66; 

8  Pinkerton  v.  Barnsley  Canal  Co.,  3  Y.  Law's  Pract.  U.  S.  Courts,  p.  643.     [*  On 

&  J.  277,  n. ;    Ellis  i--.   Sinclair,  Id.  273;  the  hearing  of  a  motion,  it  is  open  to  the 

Ld.  Kinnaird  v.  Saltoun,  1  Madd.  R.  227 ;  counsel  for  the  respondent  to  avail  himself 

Garvey  v.  Hibbcrt,  I  J.  &  W.  1 80  ;  3  Dan.  of  any  affidavit  on  behalf  of  his  client  which 

Ch.    Pr.    1771-1773     [*  .3d    Amer.    Ed.  is  filed  at  the  time  when  he  is  called  on   to 

1683].     But  see   Ramy  ii.  Kirk,  9   Dana,  address  the  court.      Munroe  v.  Wivcnlioe 

267,    contra.      The    certificate    of    a    no-  and  Brightlingsea  Railway  Co.,  12  L.  T. 

lary  public  is  not  sufficient  to  prove   the  N.  S.  562.] 

official    character    of   the    foreign    magis-  ^  Supra,  §  310. 


340  LAW   OF   EVIDENCE   IN   EQUITY.  [PART  VI. 

plaintiff  himself,  to  whicli,  in  odium  spoliatoris,  full  credit  will  be 
giveii.^  Conclusive  effect  is  also  given  to  the  affidavit  of  the  party 
in  certain  other  cases,  where  it  is  required  in  verification  of  his 
statement,  for  the  satisfaction  of  the  court.  Thus,  to  a  bill  of  in- 
terpleader, it  is  requisite  that  the  plaintiff  should  make  affidavit  that 
the  bill  is  not  filed  in  collusion  with  either  of  the  defendants,  but 
merely  of  his  own  accord,  for  his  own  particular  relief.^  So,  in  a 
bill  for  the  examination  of  witnesses  de  bene  esse,  where,  from  their 
age  or  infirmity,  or  their  intention  of  leaving  the  country,  there  is 
apprehended  danger  from  the  loss  of  their  testimony,  positive  affida- 
vit is  required  of  the  plaintiff,  stating  the  reasons  and  particular  cir- 
cumstances of  the  danger,  and  the  material  facts  to  which  the  wit- 
ness can  testify;  lest  the  bOl  be  used  as  an  instrument  to  retard  the 
trial ;  and  to  this  affidavit  full  credit  is  given.^  If  the  affidavit  is 
to  the  party's  belief  only,  and  does  not  state  the  grounds  of  his  be- 
lieving that  the  witness  will  so  testify,  or  does  not  state  that  he  is 
the  only  witness  by  whom  the  facts  can  be  proved,  it  will  not  be 
sufficient.*  So,  where  an  accidental  loss  is  the  essential  fact  giv- 
ing jurisdiction  to  the  court,  and  on  that  ground  the  prayer  of  the 
bill  is  not  only  for  discovery,  but  also  for  relief;  the  court  will 
not  assume  jurisdiction  upon  the  mere  suggestion  of  the  fact,  but 
requires  preliminary  proof  of  it  by  the  affidavit  of  the  party,  filed 
with  the  bill  ;  and  to  this  full  credit  is  given,  at  least  until  it  be 
overthrown  by  proof  of  the  hearing.  Such  is  the  case  of  a  bill  for 
discovery  and  relief  in  Chancery,  founded  on  the  alleged  loss,^  or 
the  mdaufid  possession  and  concealment  hy  the  defeiidant  of  an  m- 
strument  upon  which,  if  in  the  possession  of  the  plaintiff,  an  action 
at  law  might  be  maintained  by  him  against  the  defendant.^  The 
reason  of  requiring  such  preliminary  proof  in  these  cases  is,  that 

1  Supra,  §  344  ;  Ante,  Vol.  I,  §  348.  ^  Walmsloy  v.  Cliild,  2  Ves.  341,  344; 

2  3  Dan.'Ch.  Pr.  1761  [*3rl  Amer.  P^d.  Campbell  r.  Slu'klon,  13  Pick.  8  ;  Thornton 
1668],  hv  Perkins;  Story,  K(i.  PI.  §§  291,  v.  Stewart,  7  Leij^h,  128.  In  Vinjinia,  an 
297;  Bi'anold  r.  Audland,  11  Sim.  23.  afiidavit  does  not  seem  to  be  required. 
And  see  Lan.i^ston  r.  Hoylston,  2  Ves.  102,  Cabcl  v.  Mepginson,  6  Munf.  202.  If  the 
103  ;  Stevenson  v.  Anderson,  2  V.  &  B.  proof  is  clear,  both  of  the  loss,  and  that 
410.     In  ConnpclicHl,  this  is  not  required,  the  instrument,  if  nef^otiable,  was  not  ne- 

■i  .        t~%  __  ^-^  XT  1  ..•       ..„.I  1,1.,      t„      1.....,.,,,.         ..„         .I.„«. 


',qi 


i;uii,  \_^t)^^ll^  u.    o.    iii    i.<^iiiit,    mj;.     i\>  ,    i.  i.ixi. 

Dan.  Ch.  Pr.   1117,  1118  [*  3d  Amer.  Ed.  «  Anon.,  3  Atk.   17.     And  sec  Living- 

9.'i6  ;  Oldham  !-.  Carlcton,  4  Bro.  C.  C.  88  ;  ston,   v.    Livinf^ston,    4   Johns.    Ch.  297  ; 

Larat;oity  v.  Att.-(;en.,  2  Price,  172  ;  Men-  Laiji'it  '••  Morgan,  1  .lolms.  Cas.  429  ;    Le 

dizabcl  v.  Machado,  2  Sim.  &  Stu.  483.  Boy  v.  Vccder,  M.  417  ;    1    Dan.  Ch.  Pr. 

*  Rowe  V. ,  13  Ves.  261.  449,  450  [*3d  Amer.  Ed.  30^^]. 


PART  VI.]  OF   THE   'UTIGHT   AND   EFFECT   OF   EVIDENCE.  341 

the  tendency  of  the  bill  is  to  transfer  the  jurisdiction  from  a  court 
of  law  to  a  court  of  equity. 

§  385.  Full  weight  and  credit  is  also  given  to  the  plaintiffs  affi- 
davit, where  it  is  required  in  order  to  support  an  ex  'parte  applica- 
tion for  some  immediate  relief,  in  cases  which  do  not  admit  of 
delay.  The  affidavit  in  such  case  must  be  made  either  by  the 
plaintiff  liimself,  or,  in  his  absence,  by  some  person  having  certain 
knowledge  of  the  facts  \^  and  it  must  state  the  facts  on  which  the 
application  is  grounded,  positively  and  with  particularity,  and  not 
upon  information  and  belief  only,  nor  in  a  general  or  a  doubtful 
manner.^  It  must  also  state  either  an  actual  violation  of  his  right 
by  the  defendant,  or  his  apprehension  and  belief  of  imminent  and 
remediless  loss  or  damage,  if  the  case  be  such,  together  with  the 
facts  on  which  his  belief  is  grounded.^  If  the  application  be  for 
an  injunction  to  stay  tvaste,  or  other  irreparable  mischief,  the  affi- 
davit must  state  the  plaintiffs  actual  and  exclusive  title  to  the 
land  or  premises,  and  the  conduct  of  the  defendant,  actual  or 
apprehended,  in  violation  of  his  right.*  If  it  be  to  restrain  the  m- 
fringement  of  a  patent,  he  must  swear  to  his  present  belief,  at  the 
time  of  taking  the  oath,  that  he  is  the  original  inventor  ;  ^  or,  if  it 
be  to  restrain  the  infringement  of  a  copyriglit^  the  bill  being  filed  by 
an  assignee,  he  must  state  facts  showing  the  legality  of  the  imme- 
diate assignment  to  himself.^  In  an  application  for  a  writ  of  ne 
exeat  regno,  the  affidavit  must  be  positive  and  direct,  that  a  debt  is 
due  and  payable ;  that  it  is  certain  and  not  contingent ;  that  the 
plaintiff  believes  that  the  defendant  actually  intends  to  go  out  of 
the  jurisdiction,  and  the  reason  which  he  has  for  believing  so  ; 
and  that  the  debt  will  thereby  be  endangered.'^  Nothing  short  of 
such  directness  and  particularity  will  suffice  ;  except  that  in  mat- 
ters of  pure  account,  the  plaintiff's  belief  as  to  the  amount  of  the 
balance  due  to  him  is  sufficient.^  Similar  strictness  is  required 
in  affidavits  in  support  of  applications  to  restrain  the  transfer  of 

1  3  Dan.  Ch.  Pr.  1890  [*3d  Amer.  Ed.  5  jjill  v.  Thompson,  3  Meriv.  624. 
1769];    Campbell   v.   Morrison,   7  Paige,  «  3  Dan.  Ch.  Pr.  1891   [*  3d  Amer.  Ed. 
157  ;  Lord  Byron  v.  Johnston,  2  Meriv.  29.  1770]. 

2  Ibid.;  Field  v.  Jackson.  2  Dick.  599  ;  ^  2  Story,  Eq.  Jur.  §  1474;  Oldham  v. 
"Whitelegs  v.  Whitelegg,  1  Bro.  C.  C.  57,  Oldham,  7  Ves.  410;  Etches  v.  Lance,  Id. 
Endnote  by  Perkins;  Storm  v.  Mann,  4  417  ;  3  Dan.  Ch.  Pr.  1931,  1932  [*3d 
Johns.  Ch.  21.  Amer.  Ed.  1805;   Rice  v.  Hale,  5  Cush. 

3  3  Dan.  Ch.  Pr.  1891.  241.] 

*  Hanson  v.  Gardiner,  7  Ves.  305  ;  Jack-  *  Rico  v.  Gualtier,  3  Atk.  501  ;  Jackson 
son  n.  Cator,  5  Ves.  688;  Eastburn  v.  v.  Petrie,  10  Ves.  164;  Hyde  v.  Whitfield, 
Kirk,  1  Johns.  Ch.  444.  19  Ves.  354. 


342  LAW   OF   EVIDENCE  IN   EQUITY.  [PART  VI. 

negotiable  securities,  or  of  other  property,  or  the  payment  of  mon- 
ey, or  the  like.  In  these  and  all  other  cases,  where  the  danger  of 
remediless  loss  of  damage  is  imminent,  the  court  acts  at  once,  up- 
on the  credit  given  to  the  plaintiff's  affidavits  alone  ;  but  in  other 
cases  decided  upon  affidavits,  where  no  such  necessity  exists,  they 
are  ordinarily  received  on  both  sides,  and  weighed,  like  other  evi- 
dence, according  to  their  merits. 


PART  YII. 


or 


EVIDENCE     IN     COURTS     OF     ADMIRALTY 


MARITIME    JURISDICTION. 


PART  VII. 


OF   EVIDENCE    IN    COURTS    OF    ADMIRALTY  AND  MARITIME 

JURISDICTION. 


CHAPTER    I. 

PRELIMINARY   OBSERVATIONS. 

[*§  386.  Jurisdiction  of  admiralty  and  maritime  causes  in  United   States  confided 
originally  to  district  courts. 

387.  Two  classes  of  cases  ;  one  dependent  upon  locality,  and  the  other  upon  the 

nature  of  the  contract. 

388.  Forms  of  proceeding  formerly  according  tocivil  law. 

389.  Acquisitions  since  made  from  canon  law  and  Roman  civil  law. 

390.  Roman  practice  described. 

391.  392.   Interrogatory  actions  of  the  Roman  law. 

393.  Positions  and  articles  introduced  into  tlie  libel. 

394.  Defendant  answers  libel ;  new  facts  presented  in  amendment  of  libel  and  an- 

swer. 

395.  Roman  forms,  basis  of  rules  of  practice  in  Instance  courts  of  United  States. 

396.  Requisites  of  libels  of  information. 

397.  Informations  and  libels  may  be  amended  in  matters  of  form  at  any  time. 

398.  In  civil  and  maritime  causes  defendant's  answer  must  be  on  oath. 

399.  Defendant  may  require  personal  answer  of  libellant  upon  oath  to  interroga- 

tories. 

400.  Court  may  refer  any  matters  to  commissioners. 

401.  Causes  in  Roman  law  divided  into  plenary  and  summary.] 

§  386.  The  administration  of  the  admiralty  and  maritime  ju- 
risprudence in  the  United  States  is  confided  originally  and  exclu- 
sively to  the  district  courts.^  From  the  final  judgments  and 
decrees  of  these  courts  in  admiralty  and  maritime  causes,  where 
the  value  of  the  subject  in  dispute,  exclusive   of  costs,   exceeds 

1  U.  S.  Constitution,  Art.  3,  §  2;  Stat.  1789,  ch.  20,  §  9,  Vol.  1,  p.  76. 


346 


LAW   OF   EVIDENCE   IN   ADMIRALTY. 


[PAET  VIL 


fifty  dollars,  an  appeal  lies  to  the  circuit  court  next  to  be  hold- 
en  in  the  same  district  ;^  and  where  the  value  exceeds  two  thou- 
sand dollars,  an  appeal  from  the  final  judgment  or  decree  of  the 
circuit  court,  in  such  causes,  lies  to  the  Supreme  Court  of  the 
United  States.^  And  in  these  appeals,  as  well  as  in  equity 
causes,  the  evidence  goes  up  with  the  cause,  to  the  appellate 
tribunal,  and  therefore  must  be  reduced  to  writing.^  The  dis- 
trict courts  also  take  jurisdiction  of  certain  causes  at  common 
law,  the  consideration  of  which  is  foreign  to  our  present  design. 
§  387.  The  general  admiralty  jurisdiction  conferred  by  the  con- 
stitution and  laws  of  the  United  States  is  divisible  into  two  great 
classes  of  cases ;  one  dependent  upon  locality,  the  other  upon  the 
nature  of  the  contract.  The  former  includes  acts  and  injuries  done 
upon  the  sea,  whether  upon  the  high  seas,  or  upon  the  coast  of  the 
sea,  or  elsewhere  within  the  ebb  and  flow  of  the  tide.^     The  latter 


1  U  S.  Stat.  1803,  ch.  40  [93],  §  2,  Vol. 
2,  p.  244. 

2  U.  S.  Stat.  1803,  ch.  40  [93],  §  2,  Vol. 
2,  p.  244. 

3  The  Boston,  1  Sumn.  332  ;  U.  S.  Stat. 
1789,  ch.  20,  §§  19,  30;  Stat.  180.3,  ch.  93, 
§  2,  Vol.  2,  p.  244. 

*  [The  admiralty  jurisdiction  of  the 
United  States  courts  now  extends  over  all 
naviffable  waters.  In  the  case  of  The 
Thomas  Jefterson,  10  Wheat.  428,  the  Su- 
preme Court  decided  that  admiralty  juris- 
diction extended  only  to  "  waters  within 
the  el)b  and  flow  of  the  tide."  In  subse- 
quent cases  it  was  decided  that  within  this 
limit  were  included  rivers  whose  waters 
rose  and  fell  with  the  tide,  whether  the 
water  was  salt  or  fresh,  and  though  they 
wore  within  the  body  of  a  county.  Pey- 
roux  V.  Howard,  7  Pet.  324  ;  Waring  v. 
Clarke,  5  How.  441  ;  Jackson  v.  Steam- 
boat Magnolia,  20  How.  296.  See  also 
Steamboat  Orleans  v.  Phcebus,  1 1  Pet.  175. 
But  by  act  of  Congress  of  184.5,  ch.  20 
(5  U.  S.  Stats,  at  Large,  726),  admiralty 
jurisiliction  was  given  to  the  District 
Court  over  coasting  vessels  of  twenty  tons 
burden  and  u])ward  upon  the  lakes  and 
navigable  waters  connecting  the  same. 
In  the  ease  of  The  Genesee  Chief  v.  Fitz- 
hugh,  12  How.  443,  the  question  was 
raised  whether  Congress  had  power  to 
pass  such  an  act,  and  the  Court  decided 
that  it  had,  on  the  ground  that  the  ad- 
miralty and  maritime  jurisdiction  extend- 
ed over  all  narif/alile  watirs,  whether  within 
the  ebb  and  flow  of  the  tide  or  not ;  and 
that  Congress  consequently  had  power  to 
confer  this  new  jurisdiction  on  the  District 


Court  under  the  provision  in  the  Constitu- 
tion that  the  judicial  power  shall  extend 
"  to  all  cases  of  admiralty  and  maritime 
jurisdiction  "  Under  these  views  of  the 
law  on  this  subject  a  large  admiralty  prac- 
tice has  grown  up  on  the  great  inland 
lakes  and  naviga])le  rivers  of  the  United 
States.  [*  Under  the  act  of  Congress  of 
184.5,  a  State  court  has  not  concurrent  juris- 
diction with  the  admiralty  courts  of  the 
United  States  of  maritime  torts,  on  navi- 
gal)le  rivers,  where  one  of  the  parties  is  a 
steamer  or  other  vessel  employed  in  the 
commerce  or  tiie  navigation  of  such  river. 
The  Hinc  v.  Trevor,  4  Wallace,  U.  S.  R. 
555.  See  also  Brightly's  Digest,  title  "  Ad- 
miralty," and  cases  cited.] 

But  though  the  jurisdiction  of  Admiral- 
ty has  been  so  much  extended,  by  the  re- 
cent decisions  of  the  Supreme  Court,  so 
fiir  as  it  depends  upon  place,  that  tribunal 
has  shown  a  disposition  to  restrict  it  so  far 
as  it  depends  on  subject-matter.  In  Cut- 
ler V.  llae,  7  How.  729,  a  libel  brought  by 
the  owner  of  a  vessel  which  had  been  vol- 
untarily stranded,  against  the  owner  of  the 
cargo  which  had  been  saved  and  restored 
to  him,  for  contribution  to  general  avcrge, 
was  dismissed  by  the  Supreme  Court  on 
ajjpeal  for  want  of  jurisdiction,  although 
the  j)oint  was  not  raised  in  the  argument. 
The  court  held  there  was  no  lien  for  the 
general-average  contribution  after  the  car- 
go had  been  given  up  to  the  owner,  and 
that  the  admiralty  jurisdiction  ceased  with 
the  lien. 

In  the  case  of  People's  Ferry  Company 
V.  Beers,  20  How.  393,  the  Supreme  Court 
of    the    United    States   decided   that   the 


PART  VII.] 


PRELLMINARY    OBSERVATIONS. 


347 


includes  contracts,  claims,  and  services,  purely  maritime,  and 
rights  and  duties  appertaining  to  commerce  and  navigation. 
The  former  of  these  classes  is  again  divided  into  two  branches ; 
tlie  one  embracing  acts,  torts,  and  injuries  strictly  of  civil  cog- 
nizance, independent  of  belligerent  operations ;  the  other  embra- 
cing captures   and   questions   of  prize,   arising  jure   belli}     The 


builders  of  a  vessel  had  no  lien  thereon  for 
lahor  and  materials  which  could  be  en- 
forced in  admiralty,  and  took  the  ground 
that  a  contract  to  build  a  ship  or  furnish 
materials  for  her  construction  was  not 
maritime.  In  The  Richard  Busteed,  21 
Law  Kcporter,  601,  decided  after  the  case 
in  20  How.,  Judjje  Sprague  held  that  the 
latter  case  decided  merely  that  such  a  con- 
tract gave  no  lien,  and  did  not  overrule 
the  numerous  decisions  that  tiie  contract 
was  maritime  in  its  nature.  Accordingly 
he  held  that,  where  a  lien  was  given  by 
the  law  of  the  State  where  the  vessel  was 
built,  it  might  be  enforced  in  the  admiral- 
ty courts.  But  in  the  case  of  Roach  v. 
("hapman,  22  How.  129,  involving  a  ques- 
tion similar  to  that  decided  in  The  Richard 
Busteed,  the  Supreme  Court  held  that 
such  a  contract  was  clearly  not  maritime, 
and  that  the  lien  created  by  the  State  law 
could  not  be  enforced  in  admiralty.  And 
see  the  next  note  as  to  the  jurisdiction 
over  policies  of  insurance.  See  also  Tay- 
lor V.  Carryl,  20  How.  583 ;  Grant  v.  Poil- 
lon,  lb.  1C2.] 

[*  In  The  Plymouth,  3  Wallace  U.  S. 
R.  20,  it  is  held  that  where  a  vessel  lying 
at  a  wharf  on  waters  subject  to  admiralty 
jurisdiction  took  fire,  and  the  fire,  spread- 
ing itself  to  certain  storehouses  on  the 
wharf,  consumed  these  and  their  stores, 
it  is  not  a  case  for  admiralty  pro- 
ceeding. Nelson,  J.,  says:  "It  will  be 
observed  that  the  entire  damage  com- 
plained of  by  the  libellants,  as  proceeding 
from  the  negligence  of  the  master  and 
crew,  and  for  which  the  owners  of  the  ves- 
sel are  sought  to  be  charged,  occurred,  not 
on  the  water,  but  on  the  land.  The  origin 
of  the  wrong  was  on  the  water,  but  the  sub- 
stance and  consummation  of  the  injury  on 
the  land.  It  is  admitted  by  all  the  authori- 
ties that  the  jurisdiction  of  the  admiralty 
over  marine  torts  depends  upon  locality, — 
the  high  seas,  or  other  navigable  waters 
Avithin  admiralty  cognizance  ;  and  being  so 
dependent  upon  locality,  the  jurisdiction 
is  limited  to  the  sea  or  navigable  waters 
not  extending  beyond  high-water  mark. 
....  But  it  has  been  strongly  argued 
that  this  is  a  mixed  case,  the  tort  having 
been  committed  partly  on  water  and  partly 
on  land ;  and  that,  as  the  origin  of  the 


wrong  was  on  the  water,  in  other  words, 
as  the  wrong  began  on  the  water  (where 
the  admiralty  possesses  jurisdiction),  it 
should  draw  after  it  all  the  consequences 
resulting  from  the  act.  These  mixed 
cases,  however,  will  be  found,  not  cases  of 
tort,  but  of  contract,  which  do  not  depend 
altogether  upon  locality  as  the  test  of  ju- 
risdiction, such  as  contracts  of  material- 
men, for  supplies,  charter  parties,  and  the 
like.  These  cases  depend  upon  the  nature 
and  subject-matter  of  the  contract,  whether 
a  maritime  contract,  and  the  service  a 
maritime  service  to  be  performed  upon  the 
sea  or  other  navigable  waters,  though 
made  upon  land.  The  cases  of  torts  to  be 
found  in  the  admiralty,  as  belonging 
to  this  class,  hardly  partake  of  the  charac- 
ter of  mixed  cases,  or  have  at  most  but  a 
very  remote  resemblance.  They  are  cases 
of  personal  wrongs,  which  commenced  on 
the  land  ;  such  as  improperly  enticing  a 
minor  on  board  a  ship,  and  there  exercis- 
ing unlawful  authority  over  him.  The 
substance  and  consumtnation  of  the  wrong 
were  on  board  the  vessel,  —  on  the  high 
seas  or  navigable  waters,  —  and  the  inju- 
ry complete  within  admiralty  cognizance. 
It  was  the  tortious  acts  on  board  the  ves- 
sel to  which  the  jurisdiction  attached. 
This  class  of  cases  may  well  be  referred 
to  as  illustrating  the  true  meaning  of  the 
rule  of  locality  in  cases  of  marine  torts, 
namely,  that  the  wrong  and  injury  com- 
plained of  must  have  been  committed 
wholly  upon  the  high  seas  or  navigable 
waters,  or,  at  least,  the  substance  and  con- 
summation of  the  same  must  have  taken 
place  upon  these  waters  to  be  within  the 
admiralty  jurisdiction.  In  other  words, 
the  cause  of  damage,  in  technical  language, 
whatever  else  attended  it,  must  have  been 
there  complete."] 

1  3  Story  on  the  Constitution,  §  1662. 
The  subject  of  admiralty  jurisdiction,  as  it 
does  not  directly  affijct  the  pi-inciples  of 
the  law  of  evidence,  is  deemed  foreign  from 
the  plan  of  this  work,  and  therefore  is 
only  incidentally  mentioned.  It  is  well 
known  that  in  the  United  States  this  ju- 
risdiction is  asserted  and  actually  main- 
tained in  practice  more  broadly  than  in 
England.  The  history  and  grounds  of 
this  ditference,  and  the  true  nature,  extent. 


MS 


LAW   OF   EVIDENCE   IN   ADMRALTY. 


[part  VII. 


cognizance  of  all  these,  except  the  last,  belongs  to  the  Instance 
side  of  the  court,  or  what  is  elsewhere  termed  the  Instance  court 
of  admiralty ;  and  that  of  the  latter,  or  prize  causes,  belongs  to 
the  Prize  court.  In  England,  a  distinction  is  made  between 
these  two,  they  being  regarded  as  separate  courts ;  the  former 
being  the  ordinary  and  appropriate  court  of  admiralty,  proceed- 
ing according  to  the  civil  and  maritime  law,  from  whose  decrees 
an  appeal  lies  to  the  Delegates ;  and  the  latter  proceeding  ac- 
cording to  the  course  of  admiralty  and  the  law  of  nations,  with 
an  appeal  to  the  Lords  Commissioners  of  Appeals  in  Prize  Causes. 
But  in  this  country  these  two  jurisdictions  are  consolidated  and 
vested  in  the  district  courts,  though  the  jurisdiction  of  prize  is 
dormant,  until  called  into  activity  by  the  occurrence  of  war.^ 

§  388.  In  the  infancy  of  this  co;irt,  under  the  present  national 
Constitution,  it  was  required  by  statute  ^  that  "  the  forms  and 
modes  of  proceedings  in  causes  of  equity,  and  of  admiralty  and 
maritime  jurisdiction,  shall  be  according  to  the  course  of  the  civil 
law.^'  By  a  subsequent  statute  ^  it  was  provided,  that "  the  forms  and 


and  limit  of  the  admiralty  jurisdiction,  as 
recofrnized  in  the  constitution  and  laws  of 
the  United  States,  have  been  expounded 
with  masterly  force  of  reasoning  and  afflu- 
ence of  learning,  by  Mr.  Justice  Story,  in 
1815,  in  the  leading  case  of  De  Lovio  v. 
Boit,  2  Gall.  .398-476;  and  by  Judge 
Ware,  in  The  Huntress,  Daveis,  R.  93  - 
III.  Other  cases  on  this  subject  are  men- 
tioned, and  a  concise  summary  of  the  dis- 
cussion is  given  in  1  Kent,  Conim.3G.5- 
380,  and  notes,  to  which  the  student  is  re- 
ferred. See  also  Curtis  on  Merchant  Sea- 
men, pp.  34'2- 367.  [*  See  as  to  charter- 
parties  and  contracts  of  affreightment 
New  Jersey  Steamboat  Company  v.  Mer- 
chants' Bank  of  Boston,  C  How.  U.  S.  R. 
334  ;  and  Morewood  r.  Enequist,  23  lb. 
493.]  The  jurisdiction,  as  asserted  in  l)e 
Lovio  V.  Boit,  includes,  among  other 
things,  charter-parties  and  atfreightrnents; 
marine  hypothecations  and  bottomries; 
contracts  of  material-men ;  seamen's 
wages ;  contracts  l)etween  part-owners ; 
averages,  contributions,  and  jettisons  ;  and 
policies  of  insurance.  To  these  may  be 
added  salvage ;  marine  torts ;  damages 
and  trespasses ;  assaults  and  batteries  on 
the  high  seas  ;  seizures  under  the  revenue 
and  navigation  laws,  ami  the  laws  prohibi- 
tory of  the  slave-trade  ;  ransom;  pilotage; 
and  surveys.  The  jurisdiction  of  the  iid- 
miraltv  over  i)f)licies  of  insurance  was  re- 
affirmed by  Mr.  Justice  Story  in  1822,  in 
Peclc  V.  The  Merchants'  Ins.  Co.,  3  Mason, 


28 ;  and  again  in  1 842,  in  Hale  v.  The 
Washington  Ins.  Co.,  2  Story,  R.  182; 
and  is  understood  to  have  been  approved 
by  Marshall,  C.  J.,  and  Mr.  Just.  Wash- 
ington ;  Id.  183;  1  Brock.  R.  380  ;  though 
denied  by  Mr.  Just.  Johnson,  in  12 
Wheat.  638.  [In  Gloucester  Ins.  Co.  v. 
Younger,  2  Curtis,  C.  C.  322,  Mr.  Justice 
Curtis  affirmed  the  jurisdiction  of  the 
Court  in  such  cases,  as  settled  by  the  pre- 
vious decisions  in  his  circuit,  but  declined 
to  give  bis  own  opinion.  The  question  has 
not  yet  been  passed  upon  in  the  Supreme 
Court  of  the  United  States,  but  it  seems 
to  be  understood  that  the  jurisdiction  will 
be  denied  whenever  the  question  arises. 
See  the  opinion  of  Curtis,  J.,  in  the  case 
just  cited.  See  also  the  remarks  of 
Taney,  C.  J.,  in  Taylor  i-.  Carryl,  20 
How.  .583.]  [*The  court  has  jurisdic- 
tion of  all  proceedings  consequent  upon 
the  judgment  to  obtain  satisfoction.  Camp- 
bell V.  Hadley,  Sprague's  Decisions, 
470.] 

1  1  Kent,  Comm.  353-355;  Jennings 
V.  Carson,  1  Pet.  Adm.  R.  1  ;  4  Cranch, 
2,  S.  C. ;  Glass  v.  Sloop  Betsey,  3  Dall.  6, 
16.  The  jurisdiction  of  prize  causes  was 
afterwards  cxpresslv  vested  in  the  District 
Courts  by  Stat.  1812,  ch.  107,  §  6,  Vol.  2, 
p.  761. 

2  U.  S.  Stat.  1789,  ch.  21,  §  2,  Vol.  1, 
p.  93. 

3  U.  S.  Stat.  1792,  ch.  36,  §  2,  Vol.  1, 
p.  276. 


PART  VII.]  PRELIMINARY    OBSERVATIONS.  349 

modes  of  proceeding  shall  be,  in  siiits  of  equity,  and  in  those  of  ad- 
miralty and  maritime  jurisdiction,  according  to  the  principles,  rules, 
and  usages  which  belong  to  courts  of  equity  and  to  courts  of  ad- 
miralty, respectively,  as  contradistinguished  from  courts  of  common 
law."  The  course  of  proceeding  in  the  civil  law  was  thus  made  the 
basis  of  the  general  rule  of  proceeding  in  these  courts.^  This  last 
provision  was  afterwards  extended  by  statute  ^  to  the  courts  held  in 
those  States  which  had  been  admitted  into  the  Union  subsequent 
to  the  passage  of  the  act  first  above  mentioned  ;  subject,  however,  to 
such  alterations  and  additions  as  the  courts  themselves,  in  their 
discretion,  might  deem  expedient,  or  as  the  Supreme  Court  might, 
by  rules,  prescribe.  And  by  a  later  statute,^  the  Supreme  Court  is 
fully  empowered,  from  time  to  time,  to  prescribe  and  regulate  and 
alter  the  forms  of  process  to  be  used  in  the  district  and  circuit 
courts,  and  the  forms  and  modes  of  framing  and  filing  libels,  bills, 
answers,  and  other  proceedings  and  pleadings  in  suits  at  com- 
mon law  or  in  admiralty  and  in  equity  in  those  courts,  and  tlie 
modes  of  obtaining  and  taking  evidence  ;  and  generally  to  regulate 
the  whole  practice  therein,  so  as  to  prevent  delays,  and  to  promote 
brevity  and  succinctness  in  the  pleadings  and  proceedings. 

§  389.  Under  this  last  statute  the  Supreme  Court  has  made 
rules,  prescribing  with  some  particularity,  as  hereafter  will  be  seen, 
the  method  of  pleading  and  of  practice  in  the  district  and  circuit 
courts,  not  only  in  suits  at  common  law,  but  also  in  causes  of 
equity  and  in  admiralty.  But  as  the  course  of  the  civil  law  is  still 
recognized  as  the  basis  of  the  practice  in  admiralty,  it  is  obvious 
that  this  law  is  still  to  be  resorted  to,  in  all  points  of  proceedings 
and  practice,  not  otherwise  regulated  by  the  rules  of  the  Supreme 
Court.  It  is,  however,  to  be  remembered,  that  though  the  prac- 
tice, in  coyrts  of  equity  and  of  admiralty,  is  originally  deduced 
from  the  common  fountain  of  the  civil  law,  it  has  acquired,  in  its 
progress,  a  diversity  of  modes,  from  the  different  channels  through 
which  it  has  been  drawn  ;  the  practice  in  equity  having  been  main- 
ly derived  through  the  medium  of  the  canon  law,  as  administered 
in  the  Ecclesiastial  Courts,  while  the  general  rules  of  practice  in 
admiralty  have  come  to  us  more  directly  from  the  Roman  civil 
law,  though  somewhat  modified  by  the  maritime  codes  subsequently 

1  The  Adeline,  9  Cranch,  284.  ^  U.  S.  Stat.  1842,  ch.  188,  §  6,  Vol.  5, 

2  U.  S.  Stat.  1828,  ch.   68,  §  1,  Vol.  4,     p.  518. 
p.  278. 


350  LAW    OF   EVIDENCE   IN   ADMIRALTY.  [PART  VIL 

promulgated.^     It  is,  therefore,  material  for  us  to  understand  the 
leading  rules  of  practice  in  the  Roman  tribunals. 

§  390.  In  the  earlier  period  of  the  Roman  law,  the  party  ag- 
grieved might  summon  his  adversary  in  person,  or  if  he  resisted  or 
hesitated  (^struitve  pedes)  might  seize  him  (ohtorto  collo')  and  drag 
him  before  the  Prcetor  ;  but  afterwards,  and  prior  to  the  time  of 
Justinian,  the  practice  was  settled  in  nearer  conformity  to  that 
which  has  come  down  to  our  times,  by  causing  the  party  to  be  sum- 
moned by  the  apparitors,  or  officers  of  the  court.^  The  defendant 
appearing  either  voluntarily  or  by  compulsion,  the  plaintiff  proceed- 
ed to  offer  to  the  Proetor  his  libel,  or  cause  of  complaint,  in'writing, 
and  with  it  produced  such  contracts  or  instruments  as  were  the  foun- 
dation of  his  title  or  complaint.  The  defendant  then  gave  bail  to 
appear  at  the  third  day  afterwards,  this  period  being  allowed  to  him 
to  consider  whether  or  not  he  would  contest  the  demand.  If  he 
contested  it,  for  which  2i  formula  was  prescribed,  the  contestatio  litis 
being  equivalent  to  the  general  issue  at  common  law,  he  might 
demand  that  the  plaintiff  be  sworn  that  the  suit  was  not  commenced 
out  of  malice,  but  that  the  debt  or  cause  of  action  was,  in  his  opin- 
ion, well  founded  ;  and  the  plaintiff  might  require  the  oath  of  the 
defendant  that  his  defence  was  made  in  good  faith,  without  mal- 
ice, and  in  the  belief  that  it  was  a  good  defence.^  These  oaths 
were  termed  juramenta  caliimnice  post  litem  contestatam  ;  and  were 
required,  not  as  evidence  in  the  cause,  but  professedly  as  a  check 
to  vexatious  litigation.*     The  Praetor  then  appointed  the  judges 

1  3  BI.  Comm.  446  ;  1   Spence,  Eq.  Jur.  all  systems  of  jurisprudence,  it  has    been 

of   Chancery,  pp.    709-712;    2    Browne,  found  necessary  to  establish  some  check  to 

Civ.  &  Adm.  Law,  pp.  34,  348  ;  Ware's  causeless  and  vexatious  litigation.     In  the 

Kep.   298,  389.      I  commend    to    the  stu-  jurisjirudcncc    of   the    common    law,    the 

dent's    attentive    perusal   the  decisions    of  princij)al    check    is    the  liability  to    costs. 

Judge    Ware    in    the    District    Court    of  But  in  the  Jurisprudence  of  ancient  Rome, 

Maine,  which,  for  depth  of  learning  and  it  appears  that  a  j)arty  was  not  liable  for 

copiousness  of  legal  literature,  have  not  the  costs  of  the  adverse  party,  merely  be- 

been  surpassed  by  those  of  any  other  Dis-  cause  judgment  was  rendered  against  him. 

trict  Judge  in  the  United  States.  He  was  liaijle  only  when   he   instituted  an 

'^  lirowne.  Civ.  &  Adm.  L.  S.W,  351.  action   without  probable    cause;    that    is, 

"  Gill)ert,  Forum  Romanum,  pp.  21,  22  ;  when  the   suit  was   vexatious,   or,  in  the 

Ware.    R.    390.     Et    actor   quidem  juret,  language  of  the  Roman  law,  calumnious ; 

non  calumniandi  animo  litem  se  movisse,  and  then  costs  were  not  given  against  him 

sed   cxistimando  bonam  causam  habere:  as  part  of  the  judgment,  but  could  be  rc- 

Rcus  autcm  non  alitcr  suis  allcgationibus  covered    only  l)y  a    new  action,  called  an 

utatiir,   nisi  pritis  et   ipse  juravcrit,   ipiotl  action  of  calumny,   corresponding    to    an 

putans  se  bona  instantia  uti,  ad  reluctan-  action   for   a    malicious  suit    at   common 

dum    pervencrit.      Code,   lib.    2,   tit.    .'')9,  law.     By  this  action,  the  j)arty  could  re- 

1.  2.  cover  ordinarily  a  tenth,  but  in  some  cases 

*  Ware,   R.   39.5,   396.     The    nature   of  a  lifth  and  even  the  fourth,  of  the  sum  in 

this  remedy  is  thus  exi)laincd  by  the  learn-  controversy   in    the   former    action.     This 

ed  Judge  :'■  Jn   all   countries,   and   under  was    given    as    an    indemnity    for  his  e.x- 


PART  VII.]  PRELIMINARY   OBSERVATIONS.  351 

(dahat  jiidices'),  for  trial  of  the  cause,  before  whom  the  contested 
libel  was  brought,  and  upon  this  libel  the  plaintiff  put  in  his  '■^posi- 
tions" to  which  the  defendant  was  obliged  to  answer,  in  order  to 
ascertain  what  he  would  admit,  and  so  to  supersede  the  necessity 
of  proving  it.  But  if  he  denied  any  part  of  the  positions,  then  the 
part  denied  was  formed  into  distinct  "  articles,''^  and  upon  these  ar- 
ticles interrogatories  were  framed  to  be  exhibited  to  the  witnesses, 
who  were  examined  upon  these  alone  by  one  of  the  judges,  and 
the  depositions  were  taken  in  writing  by  a  notary  or  one  of  the 
judge's  clerks.  After  sentence  was  pronounced  by  the  judges,  it 
was  sent  to  the  Prcetor  to  be  executed.^ 

§  391.  "  Another  part  of  the  Roman  jurisprudence,  from  which 
our  admiralty  practice  has  been  in  part  derived,  is  the  interroga- 
tory actions  of  the  Roman  law.  These  were  derived  from  the  edict 
of  the  Praetor,  and  constituted  a  part  of  that  large  portion  of  the 
law  of  Rome  called  Jus  Proetorium  or  Jus  honorarium.  The  reason 
of  the  introduction  of  these  actions  was  this.  If  the  actor  de- 
manded in  his  action  more  than  was  his  due,  he  failed  in  his  whole 
demand ;  judgment  was  rendered  against  him,  and,  if  he  failed 
for  this  cause,  it  was  with  difficulty  that  he  could  be  restored  to 
his  rights  in  integrum.  As  he  could  not,  in  all  cases,  know  the 
precise  extent  of  his  rights,  or  rather  of  the  defendant's  liability, 
that  is,  whether  he  was  liable  for  his  whole  demand,  in  solido,  or 
for  a  part,  as  if  the  action  was  against  him  in  his  quality  of  heir, 
whether  he  succeeded  to  the  whole  inheritance  or  to  a  part,  this 
action  was  allowed  by  the  Praetor,  in  the  nature  of  a  bill  of  discov- 
ery to  compel  a  disclosure,  for  the  purpose  of  enabling  the  actor 
to  make  his  claim  to  correspond  precisely  with  his  right  and  with 
the  defendant's  liability."^ 

penses,  in  being  obliged  to  defend  himself  proceedings,  (b)     The  practice  of  reqnir- 

against  a  vexations  suit  (a).  ing    the   oath    of  caliininy    appears  to  be 

"  In  the  time  of  Justinian,  and  perhaps  preserved  generally  in  the  civil-law  courts 

at  an  earlier  period,  the  action  of  calumny  of  the   continent  of  Europe.     It   is   not, 

had    fallen    into   desuetude,  and  he,  as  a  however,  observed  in  France,  and  Dupin 

substitute,  required  the  oath  of  calumny."  condemns  it  as  conducing   more  to  jier- 

'•  But   the  oath  of  calumny,    though  not  jury  than  to  the  prevention  of  litigation, 

evidence,  was  an  essential  part  of  the  pro-  which,  he  says,  is  more  effectually  checked 

ccedings  in  the  cause.     It  was  ordered  by  by  a  liability  for  costs."  (c)     Id.  pp.  395- 

Justinian   to  be  officially  required   by  the  397. 

judge,  although  not  insisted  upon  by  the  ^  Gilb.  For.  Rom.  pp.  22,  23. 

parties,  and  if  omitted  it  vitiated  the  whole  ^  Ware,  R.  397. 

(a)   Gaii,  Comm.  Lib.  4,  §§  175  -  178  ;  Inst.  4,  16,  1  ;   Vinn.  in  loc. 

{b)  Gail,  Pract.  Obs.  L.  1  ;  Obs.  23,  1,  and  90,  1  ;  Huber,  Prselect.  Vol.  1,  L.  4, 16,  2. 

(c)  Heinn.  Recitationes,  ed.  Dupin,  4,  16,  1. 


852  LAW   OF  EVIDENCE   IN  ADMIRALTY.  [PART  Vn. 

§  392.  "  By  a  constitution  of  the  Emperor  Zeno,  the  law  de 
pluris  petitione,  by  wliich  the  actor  failed,  if  he  demanded  too 
much,  was  abolished,  and  by  the  time  of  Justinian,  if  not  at  an 
earlier  period,  these  interrogatory  actions  had  fallen  into  disuse, 
as  we  learn  from  a  fragment  of  Callistratus  preserved  in  the  Di- 
gest. A  new  practice  arose  of  putting  the  interrogatories  after 
contestation  of  suit,  and  the  answers  thus  obtained,  instead  of  fur- 
nishing the  grounds  for  the  commencement  of  an  action,  became 
evidence  in  the  case  for  the  adverse  party.  This  appears  from  the 
law  referred  to  above  ;  ad  probationes  sufficiunt  ea,  quce  ah  adversa 
parte  expressa  fuerint.  The  general  practice  of  tlie  courts,  which 
have  adopted  the  forms  and  modes  of  proceeding  of  the  Roman 
law,  of  requiring  the  parties  to  answer  interrogatories  under  oath, 
called  positions  and  articles,  or  facts  and  articles,  seems  to  be  de- 
rived through  this  law  of  the  Digest,  and  the  later  practice  of  the 
Roman  forum,  from  the  ancient  interrogatory  action ;  although 
Heineccius  has  expressed  a  contrary  opinion."  ^  This  form  of 
proceeding  "  has  passed,  with  various  modifications,  into  the  prac- 
tice of  the  courts  of  all  nations  which  have  adopted  the  Roman 
law  as  the  basis  of  their  jurisprudence.  Either  party  may  interro- 
gate the  other,  as  to  any  matter  of  fact  which  may  be  necessary  to 
support  the  action  or  maintain  the  defence,  and  the  party  interro- 
gated is  bound  to  answer,  unless  his  answer  will  implicate  him  in 
a  crime.  The  answer  is  evidence  against  himself,  but  not  to 
affect  the  rights  of  third  persons."  ^ 

§  393.  "  Modern  practice  has  introduced  another  innovation, 
and  has  authorized,  for  the  purpose  of  expediting  causes,  the  in- 
troduction, substantially,  of  the  positions  and  articles  into  the  libel 
itself,  although  regularly  they  cannot,  in  the  form  of  positions  and 
articles,  be  propounded  until  after  contestation  of  suit,  and,  of 
course,  not  until  after  the  answer  is  in.  A  libel  in  this  form  is 
said  to  be  an  articulated  libel,  or  a  libel  in  articles.  The  evidence 
sought  for  is  then  obtained  in  the  answer.  It  is  a  special  answer 
to  each  article  in  the  libel,  and  the  litis  contestatio  when  the  plead- 
ings are  in  this  form,  is  said  to  be  special  and  particular,  in  con- 
tradistinction to  a  simple  libel,  and  a  general  answer  amounting  to 
the  general  issue.     An  issue  is  formed  on  each  article. 

"  From  this  account  it  is  apparent  tliat  the  practice  of  the  ad- 
miralty, so  far  as  relates  to  the  libel  and  answer,  is  in  its  forms 

»  Ware,  R.  398.  2  Ware,  R.  398. 


PART  VII.]  PRELIMINARY   OBSERVATIONS.  853 

identical  with  that  of  the  Roman  law.  As  in  the  Roman  law,  so 
in  the  admiralty,  the  parties  are  required  to  verify  the  cause  of 
action  and  the  defence  by  oath ;  the  libel  may  either  be  simple  or 
articulated,  and  the  answer  must  correspond  with  it ;  either  party, 
also,  may  require  the  other  to  answer  interrogatories  on  oath, 
touching  any  matters  which  may  be  necessary  to  support  the  libel 
or  the  answer."  ^ 

§  394.  In  the  Roman  practice,  the  libel  having  been  filed,  the 
defendant  answered  the  charge,  either  by  confessing  it,  or  by  a 
general  denial  of  its  truth,  which  is  the  original  meaning  of  the 
litis  contestatio  ;  or  by  a  defensive  exception  ;  either  declinatory  to 
the  jurisdiction,  or  dilatory,  postponing  or  delaying  the  suit,  or 
peremptory,  answering  in  eJEfect  to  the  plea  in  bar  of  the  common 
law.  The  defendant  having  pleaded,  the  plaintiff  replied  ;  and 
the  defendant  might  rejoin,  termed  a  duplication  beyond  which  the 
parties  were  seldom  suffered  to  go.^  But  though  the  old  course 
of  practice  in  the  admiralty  permitted  new  matter  to  be  thus  in- 
troduced by  way  of  replication  and  rejoinder,  the  modern  and 
more  approved  practice  is  to  present  new  facts,  when  rendered  ne- 
cessary, in  an  amendment  of  the  libel  and  answer.^ 

§  395.  Upon  tlie  basis  of  the  Roman  forms  of  proceeding,  the 
outlines  of  which  have  been  thus  briefly  sketched,  the  rules  of 
modern  practice  have  been  founded  ;  and  upon  this  basis  the  Su- 
preme Court  of  the  United  States,  under  the  authority  given  by 
the  statute  before  cited,*  has  constructed  its  Rules  of  Practice  for 
the  courts  of  the  United  States,  in  all  causes  of  admiralty  and 
maritime  jurisdiction  on  the  Instance  side  of  the  court.  By  these 
Rules  it  is  ordered,^  that  all  liheU  in  instance  causes,  civil  or  mari- 
time, shall  state  the  nature  of  the  cause,  as,  for  example,  that  it  is  a 
cause  civil  or  maritime,  of  contract,  of  tort  or  damage,  of  salvage, 
or  of  possession,  or  otherwise,  as  the  case  may  be  ;  and  if  the  libel 

1  Ware,  R.  399.     I  have  not  hesitated  ^  Browne,   Civ.   &  Adm.  L.  362-367, 

to  adopt  the  language  of  Judge  Ware,  on  416. 

this  subject,  his  lueid  and  succinct  account  ^  The  Sarah  Ann,  2  Sumn;  208  ;  Coffin 
of  the  forms  of  proceeding  in  the  Roman  v.  Jenkins,  3  Story,  R.  108,  121.  New- 
tribunals  being  precisely  adapted  to  my  matters  may  also  be  introduced  by  way  of 
present  pui-pose.  The  student  will  find  a  supplemental  libel  and  answer ;  as  in 
more  extended  account  of  those  forms  of  Waring  v.  Clarke,  5  How.  S.  C.  R.  441. 
proceeding  in  Gilbert's  Forum  llomanum,  [See  Reg.  52,  17  How.  6  ;  Taber  v.  Jenny, 
ch.  2,  3,  and  4.     And  see  Storv,  Eq.  PI.  19  Law  Hep.  27.] 

§  14,  note;    Oughton,   Ordo  Judiciorura,  *  U.  S.  Stat.  1842,  ch.  188,  §  6,  VoL  5, 

passim;    Brissonius,    De    Formulis    Pop.  p.  518;  Supra,  ^  388. 

Rom.    lib.    5,    De    formulis    judioiariis.  ^  Keg.  23.   No  summons  or  other  mesne 

See    also     Sherwood    v.   Hall,   3    Sumn.  process  is  to  be  issued  until  the  libel  is 

130.  filed.     Reg.  1. 

VOL.  HI.  23 


854  LAW   OF.  EVIDENCE  IN  ADMIRALTY.  [PART  VIL 

is  in  rem,  that  the  property  is  within  the  district;  and  if  in  perso- 
nam, the  names,  occupations,  and  place  of  residence  of  the  parties. 
The  libel  must  also  propound  and  articulate  in  distinct  articles,  the 
various  allegations  of  fact,  upon  which  the  libellant  relies  for  the 
support  of  his  suit,  so  that  the  defendant  may  be  enabled  to  an- 
swer distinctly/  and  separately/  the  several  matters  contained  in  each 
article  ;  ^  and  it  must  conclude  with  a  prayer  of  the  process  requi- 
site to  enforce  the  rights  of  the  libellant,  and  for  such  relief  and 
redress  as  the  court  is  competent  to  give  in  the  premises.  And 
the  libellant  may  further  require  the  defendant  to  answer  on  oath 
all  interrogatories  propounded  by  him  at  the  close  or  conclusion 
of  the  libel,  touching  all  or  any  of  the  allegations  it  contains.^  It 
is  not  necessary,  in  all  cases,  that  the  libel  be  sworn  to  in  the  first 
instance,  unless  when  it  is  founded  on  a  claim  of  debt ;  but  the 
defendant  may -always  demand  the  oath  of  the  libellant  to  the  libel, 
if  he  chooses.^  In  suits  in  rem,  however,  the  party  claiming  the 
property  is  required  to  verify  his  claim  on  oath  or  affirmation,  stat- 
ing that  he,  or  the  person  in  whose  behalf  he  interposes,  and  none 
other,  is  the  true  and  bond  fide  owner  of  the  property  ;  and  also 
stating  his  authority,  if  he  is  acting  for  the  owner.* 

§  396.  In  like  manner  it  is  required  that  informations,  and  libels 
of  information  for  any  breach  of  the  revenue  or  navigation  or  other 
laws  of  the  United  States,  should  state  the  place  of  seizure,  wheth- 
er it  be  on  land,  or  on  the  high  seas,  or  on  navigable  waters  within 
the  admiralty  and  maritime  jurisdiction ;  and  the  district  within 
which  the  property  is  brought,  or  where  it  then  is.     The  informa- 

1  The   Virfjil,   2   W.   Rob.    204;    The  See  Hall's  Adrn.   Pract.    p.    124;    Infra, 

Boston,  1    Sumn.   328;    Trcadwoll   v.   Jo-  §  413. 

seph,  Id.  390.     In  a  suit  for  wa<;es,  for  a         ^  Hutson    ».    Joi'dan,    Ware,    R.   391  ; 

share  in  a  whaling  voya^iC,  where  a  charge  Coffin  v.  Jenkins.  3  Story,  R.  121.     [And 

of  general  and  habitual  misconduct  is  to  see  The  L.  B   Goldsmith,  1  Newb.  123.    A 

be  made  out  in  defence,  it  shoidd  be  pro-  libel  filed  in  another  suit  is  not  evidence 

pounded  in  exact  terms  for  the  purpose;  against  the  libellant   of  the   facts  stated 

and  where  specific  acts  of  misconduct  are  therein.     Church  v.  Shelton,  2  Curtis,  C. 

to  be  relied  on,  they  should  he  specifically  C.  271.] 

alleged,  with  due  certainty  of  time,  place,         *  Rules    in    Admiralty,    Reg.    26 ;    U. 

and    other   circumstances.     Macomiier   v.  States  v  Casks  of  Wine,  1  Pet.  547,  .'J49  ; 

Thomp,son,  1   Sumn.  384;  Orne  v.  Town-  Houseman  v.  The  North  Carolina,  15  Pet. 

send,  4  Mason,  542.     But  the  libel  need  40.     As  to  the  persons  entitled   to   make 

not  state  matters  of  defence.    The  Aurora,  claim,  see  The  Livelv,  1   Gall.  315;  The 

7  Cranch,  382,  389.  Sally,  Id.  400;  The  "Adeline,   9   Cranch, 

•  It  is  obvious  that  this  rule  expresses  244;  The  Bello  Corruues,  6  Wheat.  152; 

nothing  more  nor  less  than  is  required  in  The  Anteloj)e,   10  Wiieat.  66;  The  Lon- 

the  old  Latin  couplet,  quoted  in  Con.set's  don  Packet,  1    Mason,  14;  The  Packet,  3 

Brief  Discourse  on  the  Form  of  a  Libel: —  Mason,  255;  The  Bo>ton,   1   Sumn.  328, 

Quis,  quid,  coram  quo,  quo  juro  petatur,  et  i  quo,      ^'^■** 
Kecte  compOHilus  qui(iu«  l.ibellus  Uabet. 


PART  VII.]  PRELIMINARY    OBSERVATIONS.  355 

tioii  or  libel  must  also  propound,  in  distinct  articles,  the  matters 
relied  on  as  grounds  of  forfeiture,  averring  the  same  to  be  contra- 
ry to  the  statute  or  statutes  in  such  case  provided ;  and  conclud- 
ing with  a  prayer  of  process,  and  notice  to  all  persons  in  interest, 
to  appear  and  show  cause  why  the  forfeiture  should  not  be  de- 
creed.^ 

§  397.  Informations  and  libels  may  be  amended  in  matters  of 
form,  at  any  time,  on  motion  as  of  course ;  and  new  counts  or  ar- 
ticles may  be  filed  and  amendments  in  matters  of  substance  may 
be  made,  on  motion  and  upon  terms,  at  any  time  before  the  final 
decree.^  Where  merits  clearly  appear  upon  the  record,  it  is  the 
settled  practice  in  admiralty  not  to  dismiss  the  libel  for  any  defect 
or  mistake  in  the  statement  of  the  libellant's  claim  or  title,  but  to 
allow  him  to  assert  his  rights  in  a  new  allegation.^  But  though 
the  most  liberal  principles  prevail  in  admiralty  courts  in  regard 
to  amendments,  the  libellant  will  not  be  permitted,  in  the  appel- 
late court,  to  introduce,  by  way  of  amendment,  a  new  res  or  sub- 
ject of  controversy,  which  did  not  go  up  by  appeal.* 

§  398.  In  all  causes  civil  and  maritime,  whether  in  rem  or  in  per- 
sonam, the  answer  of  the  defendant  to  the  allegations  in  the  libel 
must  be  on  oath  or  solemn  affirmation.  His  answer  must  be  full, 
and  explicit  and  distinct  to  each  separate  article  and  separate  allega- 
tion in  the  libel,  in  the  same  order  as  they  are  there  numbered ; 
and  he  is  required  to  answer,  in  like  manner,  each  interrogatory 
propounded  at  the  close  of  the  libel. ^     But  he  may,  in  his  answer, 

1  Rules  in  Admiralty,  Reg.  22.  Tech-  pilot,  the  libel  may,  with  leave  of  the 
nical  niceties,  unimportant  in  themselves,  court,  be  amended  so  as  to  apply  to  the 
and  standing;  only  on  precedents,  the  rca-  vessel  and  master  only  in  the  way  men- 
sons  of  which  cannot  be  discerned,  are  not  tioned.  Newell  r.  Norton  and  Ship,  3 
regarded   in    libels  of  information  in  ad-  Wallace  U.  S.  R.  257.] 

miralty.     It  is  sufficient  if  the  oflence  be  ^  The  Adeline,  9  Craneh,  284 ;  Anon, 

des^cribed  in  the  words  of  the  law,  and  be  1  Gall.  22. 

so  described,  that  if  the  allegation  be  true,  *  Houseman  v.  The  North  Carolina,  15 

the  case  must  be  within  the  statute,  the  Pet.  40,  50.     And  see  2  Browne,  Civ.  & 

facts  being  so  indicated  as  to  give  rcasona-  Adm.  L.  p.  416;  The   Boston,    I    Sumn. 

ble  notice  to  the  party  to  enable  him  to  328  ;   [Kynoch  v.  The  S.  C.  Ives,  1  Newb. 

shape  his  defence.    The  Hoppet,  7  Craneh,  205  ;  Coffin  v.  Jenkins,  3  Story,  108  ;  Udall 

394;    The   Samuel,    1    Wheat.    15;    The  r.  Steamship  Ohio,  17  How.  17;  but  .see 

Merino,  9  Wheat.  401;  The  Palmyra,  12  Weaver  v.   Thompson,  1   Wall.  Jr.,  3^3. 

Wheat.  13.  For  the  rules  as  to  the  amendment  of  an- 

2  Rules  in  Admiralty,  Reg.  24.  And  swers  in  admiralty  on  appeal  to  the  Cir- 
see  Orn(!  v.  Townsond,  4  Mason,  541.  cuit  Court,  see  Lamb.  v.  Parkman,  21 
[*  A  libel  in  rem  against  a  vessel,  and  per-  Law  Rep.  589.] 

sonally  against  her  master,  may  properly,  ^  Rules   in   Admiralty,   Reg.  27.     And 

under  the  present  practice  established  by  see   The   William   Harris,  Ware,  R.  367, 

United  States  Supreme  Court,  be  joined.  369;  Coffin  v.  Jenkins,  3  Story,  R.  109; 

And  if  the  libellant  have  originally  pro-  Hutson   v.  Jordan,  Ware,  R.   385  ;  Dun- 

ceeded  against  vessel,  master,  owners,  and  lap's  Adm.  Pract.  201,  202;  The  Boston, 


856  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PAET  VIL 

object  to  answer  any  allegation  or  interrogatory  in  the  libel,  wliicli 
will  expose  him  to  any  prosecution  or  punishment  for  a  crime,  or 
to  any  penalty  or  forfeiture  of  his  property  for  a  penal  offence.^ 
If  he  omits  to  answer  upon  the  return  of  the  process,  or  other  day 
assigned  by  the  court,  the  libel  may  be  taken  pro  confesso  against 
him.2  And  if  he  answers,  but  does  not  answer  fully,  explicitly, 
and  distinctly,  to  all  the  matters  in  any  article  in  the  libel,  the 
court,  upon  exception  taken  thereto,  may  by  attachment  com- 
pel him  to  make  further  answer,  or  may  order  that  the  matter  of 
exception  be  taken  pro  confesso  against  the  defendant  to  the  full 
purport  and  effect  of  the  article  thus  insufficiently  answered.^  It 
is  not,  however,  bound  to  proceed  to  this  extent ;  but  in  such 
cases  of  what  is  termed  presumptive  confession,  it  may  limit  the 
presumption  to  that  portion  of  the  article  to  which  the  exception 
is  well  taken,* 

§  399.  The  defendant  7nai/  require  the 'personal  answer  of  the  lihel- 
lant,  upon  oath,  or  solemn  affirmation,  to  any  interrogatories  which 
he  may  propound  at  the  close  of  his  own  answer,  touching  any 
matters  charged  in  the  libel,  or  any  matter  of  defence  set  up  by 
himself;  not  exposing  the  libellant  to  criminal  prosecution  or  pun- 
ishment, nor  to  a  penalty  or  forfeiture  for  a  penal  offence.  And 
in  default  of  due  answer,  the  libel  may  be  dismissed,  or  the 
libellant  may  be  compelled  by  attachment  to  answer,  or  the  matter 
of  the  interrogatory  may  be  taken  pro  confesso  in  favor  of  the 
defendant  at  the  discretion  of  the  court.^  This  right  of  requiring 
the  answer  of  the  adverse  party,  upon  oath,  to  interrogatories 
pertinent  to  the  cause,  is  a  mutual  right,  and  may  be  claimed  at 
any  stage  of  the  cause,  even  down  to  the  hearing.^ 

§  400.    Where  the  purposes  of  justice  require  it,  the  court  has 

1   Sumn.  328.     [This  rule  docs  not  apply  not  precluded  from  receiving  any  evidence 

to  cases  where  the  sum  or  value  in  dispute  which  his   counsel,  as  amicus  curia;,  may 

docs  not  exceed  fiftv  dollars,  exclusive  of  offer.     The  David  Pratt,  Ware,  R.  495. 

costs,  unless  ordered "l)y  the  District  Jud<,'e.  »  ij.  jieg.  30.     Exceptions  to  any  libel 

Additional    Hule   in   Admiralty,  10  How.  or  answer  may  be  taken,  for  surplusage, 

5  ]     A  similar  answer  is  required  of  the  irrelevancy,  impertinence,  or  scandal ;  and 

(,Mrni«lice  in  a  forcit^n  attachment.     Kulcs  referred   to  a  Master,  as  in   Equity.     Id. 

in    Adm.    He;;.    37.      [See    McDonald   v.  Rc<?.  36. 

Kennel.  21  Law  Hep.  1.57.]  *  Dunlap's  Adm.  Pract.  204. 

1   liulcs   in  Admiralty,   Reg.   31.     And  <*  Rules  in  Admiralty,  Rc":.  32.     Each 

.sec  U.   States  v.  Packa^'cs,  Gilp.  R.  306,  party,  on  the  Instance  side,  may  rc(iuire 

313;   Dunlap's  Adm.  Pract   207.  the  oath  of  the  other,     (iammcll  y.  Skin- 

'■!  Id.  He-;.  29.    And  .'*ee  (,'lcrke's  Praxis,  ncr,  2  Gall.  45.     The  David  Pratt,  Ware, 

tit.  24;   Hall's  Adm.  Pract.  p.  52.     If  the  R.  495.     A  person  intervening  pro  inlcr- 

omission  is  ttirouKh  ignorance  of  the  prac-  exue  siio,  has  the  same  jjrivilege.     Rules  in 

tice  of  the  conrt,  and  the  defendant  is  ab-  Admiralty,  Reg.  34,  43. 

sent  at  the  time  of  hearing,  the  court  is  ''2  Browne,  Civ.  &  Adm  L.  j).  416. 


PART  VII.] 


PRELIMINARY    OBSERVATIONS. 


357 


power  to  refer  any  matters,  arising  in  the  progress  of  the  suit,  to 
one  or  more  Commissioners  to  be  appointed  by  the  court  to  hear 
the  parties  and  make  report  therein  ;  these  Commissioners  having 
all  the  powers  of  Masters  in  Chancery.^ 

§  401.  It  may  here  be  added,  that,  in  the  Roman  law,  causes 
are  either  plenary  or  summary.  Plenary  causes  are  those  in 
which  the  order  and  solemnity  of  the  law  are  strictly  observed,  in 
the  regular  contestation  of  the  suit,  a  regular  term  to  propound,  and 
a  solemn  conclusion  of  the  acts ;  the  least  omission  or  infringement 
of  which  nullifies  the  proceedings.  Summary  proceedings  are 
those  in  which  this  order  and  solemnity  are  dispensed  with  ;  the 
suit  is  deemed  contested  by  the  next  contradictory  act  concerning 
the  merits,  after  the  libel  is  put  in  ;  there  is  no  assignation  to  pro- 
pound, and  no  express  conclusion.  And  all  causes  in  admiralty 
are  summary,  or  "  instantaneous  "  ;  it  being  of  primary  impor- 
tance to  the  interests  of  commerce  and  navigation  that  justice  be 
done  with  the  least  possible  delay .^ 


1  Rules  in  Admiralty,  Reg.  44 ;  Supra, 
§§332-336. 

2  2  Browne,  Civ.  &  Adm.  L.  413.  And 
see  Gaines  v.  Travis,  8  Leg.  Obs.  48 ; 
Brissonius,  Do  Verb.  Significat.  verb. 
Siimiiiatim;  Pratt  v.  Thomas,  Ware,  R. 
435,  436.  Hence  it  is,  that  courts  of  ad- 
miralty do  not  require  all  the  technical 
precision  and  accuracy  in  pleading,  which 
is  demanded  in  the  courts  of  common 
law.  It  is  only  requisite  that  the  cause 
of  action  should  be  plainly  and  explicitly 
set  forth,  not  in  any  particular  formula, 
but  in  clear  and  intelligible  language,  so 
that  the  adverse  party  may  understand 
what  he  is  required  to  answer,  and  make 
up  an  issue  upon  the  charge.  Jenks  v. 
Lewis,  Ware,  K.  52.  Courts  of  admiral- 
ty, as  far  as  their  powers  and  jurisdiction 
extend,  act  upon  the  enlarged  and  liberal 
jurisprudence  of  courts  of  equity.  Brown 
V.  Lull,  2  Sumn.  443.  Hence  the  rule 
applies  here,  as  in  other  courts  of  equity, 
that  the  party  who  asks  aid  must  come 
with  clean  hands.  The  Boston,  1  Sumn. 
328.  Hence,  also,  it  is,  that  a  condemna- 
tion against  one  defendant  who  is  in  con- 
tumacy, or  makes  no  answer,  does  not 
prevent  another  defendant  from  contest- 
ing, so  far  as  respects  himself,  the  very 
fact  which  is  thus  admitted  by  the  party 
in  default ;  The  Mary,  9  Cranch,  126,  143  ; 
—  that  an  agreement  in  court,  in  respect 
to  the  disposition  of  the  cause,  if  made 
under  a  mistake,  will  be  set  aside ;  The 
Hiram,  1   Wheat.   440;  —  that  the  court 


will,  in  a  case  of  fraud,  or  something 
equivalent  to  it,  or  for  other  strong  rea- 
sons, suffer  a  cause  to  be  reopened  for  the 
correction  of  a  particular  error,  after  it  has 
been  closed ;  The  Fortitudo,  2  Dods.  58 ; 
The  Monarch,  1  W.  Rob.  21 ;  The  New 
England,  3  Sumn.  495,  506 ;  Jacobsen's 
Sea  Laws,  pp.  395,  396  ;  —  that  it  will  not 
lend  its  aid  to  enforce  contracts  essentially 
vicious,  or  tainted  with  fraud  or  extortion  ; 
The  Cognac,  2  Hagg.  377  ;  —  and  that  it 
will  interpret  maritime  contracts  with 
greater  liberality  than  is  found  in  the 
stricter  doctrines  of  the  common  law; 
Ellison  V.  The  Bellona,  Bee,  R.  106  ;  The 
Nelson,  6  C.  Rob.  227  ;  [The  Minerva,  I 
Hagg.  347  ;  The  Prince  Frederic,  2  Id. 
394;  The  Cypress,  1  Blatchf.  &  H.  83; 
The  Triton,  Id.  282 ;  The  Betsey  and 
Rhoda,  Daveis,  112;  The  Heart  of  Oak, 
1  W.  Rob.  204.  But  though  courts  of 
admiralty  act  upon  equitable  principles, 
they  have  no  power  to  administer  equita- 
ble" rights  in  cases  not  otherwise  within 
their  jurisdiction.  Andrews  v.  Essex  F. 
&  M.  Ins.  Co.,  3  Mas.  6 ;  Davis  v.  Child, 
Dav.  71  ;  Kellum  v.  Emerson,  2  Curt.  C. 
C.  79  ;  Kynoch  v.  The  S.  C.  Ives,  1  Ncwb. 
205.]  [*  An  assignee  of  a  chose  in  action 
may  sue  in  his  own  name  in  the  admiral- 
ty.' And  this  is  so,  if  the  assignment  be 
only  of  a  part  of  the  entire  right :  at  least 
the  respondents  cannot  object,  on  that 
ground,  if  the  whole  right  be  represent- 
ed by  the  libellants.  Swett  v.  Black, 
Sprague's  Decisions,  574.] 


358  LAW   OF   EVIDENCE  IN   ADMIRALTY.  [PART  VU. 


CHAPTER   II. 


OP   EVIDENCE   IN   INSTANCE   CAUSES. 

[*  §  402.  How  far  rules  of  evidence  in  admiralty  are  same  as  at  common  law. 

403.  Rule  that  proofs  and  allegations  must  coincide.     How  far  qualified. 

404.  Illustrations  of  the  rule  that  the  burden  of  proof  is  on  him  who  alleges. 

405.  Best  evidence  required ;  but  this  is  often  such  as  courts  of  common  law  or 

equity  would  reject. 

406.  Rules  of  presumptive  evidence  more  familiarly  and  freely  applied  than  in 

equity  or  common  law. 

407.  In  cases  of  collision  rules  of  presumption  are  drawn  from  nautical  experience 

and  settled  usages  of  navigation. 

408.  Rule  of  omnia  prcesumnntur  contra  spoliatorem  administered  more  frequently 

and  stringently  in  admiralty  than  elsewhere. 

409.  Two  classes  of  evidence  in  the  Roman  law.     Source  of  rule  by  which  oath 

of  party  is  received  in  certain  cases. 

410.  Parties  competent  witnesses  on  trial  of  merits  in  three  cases. 

411.  Oath  decisory  described.     Seldom  resorted  to  in  American  courts. 

412.  Parties  sometimes  witnesses  from  necessity. 

413.  Sworn  answer  of  defendant  how  far  evidence ;  not  the  same  weight  as  in  chan- 

cery. 

414.  Exceptions  to  the  rule  of  incompetency  from  interest  more  frequent  in  ad- 

miralty than  at  common  law. 
41.'>.    Upon  what  principle  sliipmaster  may  be  witness  for  owners. 

416.  How  far  sfamen,  joint  libellants  for  wages,  may  be  witnesses  for  each  other. 

417.  General  rules  as  to  proof  of  documents  same  as  in  courts  of  common  law. 

418.  Documents  peculiar  to  maritime  transactions. 

419.  Title  to  vessels,  how  proved  in  the  United  States.     Bill  of  sale  ordinarily 

required. 

420.  But  not  in  cases  oi  judicial  sales,  or  condemnation  as  prize  ofivar, 

421.  Contract  for  conveyance  of  goods  by  sea  regularly  made  by  charter-party ; 

but  writing  not  indispensable  in  England  and  United  States. 

422.  Bill  of  lading  proper  evidence  of  shipment  of  goods.     Not  required  in  Eng- 

land and  America  by  statute,  but  by  immemorial  maritime  usage. 

423.  Shipping  articles  required  by  statute  must  contain  what,  and  how  far  may 

be  varied  by  parol  evidence. 

424.  Only  primary  legal  evidence  of  the  contract. 

425.  In  the  Jjsheries,  contract  of  master  and  seamen  required  by  statute  to  be  in 

writing. 
42b.    If   shipping    articles   are   lost,   the  role  d'equipage  is   competent  secondary 
evidence. 


PART  VII.]  OF   EVIDENCE   IN   INSTANCE    CAUSES.  '369 

§  427.  In  interpretation  of  seamen's  contracts  courts  of  admiralty  carefully  protect 
seamen. 

428.  Log-book,  of  what  transactions  it  is  evidence. 

429.  How  far  made  indispensable  by  statute  in  cases  of  absence  of  seamen  from 

vessel. 

430.  Though  made  indispensable,  it  is  not  incontrovertible. 

431.  Log-book,  to  be  admissible  as  evidence,  ought  regularly  to  be  pleaded  in  the 

answer. 

432.  Other  documents  admissible  in  courts  of  admiralty  described. 

433.  Testimony  in  ordinary  c'vnl  causes  in  admiralty  taken  viva,  voce,  but  in  im- 

portant causes  usually  by  depositions.     Authority  for  taking  depositions. 

434.  Objections  to  the  competency  of  a  deponent,  if  known,  should  be  made  at  tak- 

ing of  deposition  ;  when  taken  under  statute. 

435.  General  rules  for  conduct  of  commissioners,  parties,  and  counsel  same  in  ad- 

miralty as  in  etpiity ;  but  administered  in  admiralty  with  less  strictness. 

436.  AiBdavits  seldom  used  in  Instance  causes,  except  in  some  cases  of  salvage, 

and  in  matters  relating  to  the  progress  of  the  suit.] 

1.    GENERAL   RULES. 

§  402.  The  rules  of  evidence  in  admiralty  and  maritime  causes, 
as  well  as  in  causes  in  Equity,  are  generally  the  same  as  at  Com- 
mon Law,  so  far  as  regards  the  relevancy  of  evidence,  the  proof 
of  the  substance  of  the  issue,  the  burden  of  proof,  the  requisition 
of  the  best  evidence,  the  competency  of  witnesses,  and  some  other 
points  ;  all  which  have  been  sufficiently  treated  in  a  preceding 
volume.  A  few  additional  particulars  only  will  here  be  noted, 
which  either  distinguish  proceedings  in  admiralty,  or  illustrate 
the  application  of  those  rules  in  admiralty  courts. 

§  403.  Thus,  as  to  the  relevancy  of  evidence^  it  is  a  rule  in  ad- 
miralty, that  the  proofs  and  allegations  must  coincide ;  evidence 
of  facts  not  put  in  contestation  by  the  pleadings,  and  allegations 
of  facts  not  established  by  proofs,  will  alike  be  rejected.^  The 
hearing  is  upon  the  pleas  and  proofs  alone ;  secundum  allegata  et 
probata  ;  but  the  appellate  court  will  sometimes  permit  parties,  in 
that  court,  non  allegata  allegare,  et  non  probata  probare,  under 
proper  qualifications.^ 

1  The  Sarah  Ann,  2  Sumn.  209;  Pet-  pleadings,  or   alleged   only  by  the  party 

tingill  V.  Dinsmore,  Daveis,  R.  211.    [But  against  whom  the  decision  is  made.     The 

there  is  no  doctrine  of  merely  technical  Wm.    Penn,   3    Wash.    484 ;    The    Lady 

variance  in  the  admiralty,  and  "no  effect  is  Anne,    1    Eng.    Law    &    Eq.    674 ;    The 

allowed  to  a  variance  which  cannot  have  Clement,  2  Curtis,  C.   C.  363 ;  The   Ali- 

surprisod  the  opposite  party,  except  so  far  wal,  25  Eng.  Law  &  Eq.  602.     See  also 

as  an  incomplete  statement  of  his  case  may  Dupont  i'.   Vance,  19  How.  162.] 
prejudice  the  mind  of  the  judge  against         ^    Id.    210;    The   Marianna   Flora,    11 

the  party.     Thus  the  court  frequently  de-  Wheat.  38 ;    The    Boston,   1   Sumn.  331 ; 

cide  colli.sinn  cases  upon  points  appearing  [The  New  England,  Newb.  481.] 
in   the  evidence   and  not  alleged  in  the 


360  LAW   OF   EVIDENCE  IN  ADMIRALTY.  [PART  VIL 

§  404.  So  as  to  the  hurden  of  proof,  the  general  rule  is  recog- 
nized, that  the  obligation  of  proving  any  fact  ordinarily  is  incum- 
bent on  him  who  alleges  it.  Thus,  in  cases  of  collision,  the  court 
will  require  preponderating  evidence  to  fix  the  loss  on  the  party 
charged,  before  it  will  adjudge  him  to  make  compensation. ^  So 
where,  in  an  Instance  or  Revenue  cause,  a  primd  facie  case  of  for- 
feiture is  made  out  on  the  part  of  the  prosecution,  the  burden  of 
proof  is  thrown  on  the  claimant,  to  explain  the  difficulties  of  the 
case,  by  the  production  of  papers  and  other  evidence,  which,  if 
the  ship,  as  he  alleges,  be  innocent,  must  be  in  his  possession  or 
under  his  control ;  on  failure  of  which,  condemnation  follows,  the 
defect  of  testimony  being  deemed  presumptive  evidence  of  guilt.^ 
So,  where  a  forfeiture  of  goods  is  claimed,  for  importation  in  a 
vessel  not  neutral,  the  burden  of  proof  of  the  vessel's  neutrality  is 
devolved  on  the  claimant,  he  holding  the  affirmative,  and  the  facts 
being  particularly  within  his  own  knowledge  and  privity  ;  and  this, 
notwithstanding  the  negative  averment,  as  to  the  neutral  charac- 
ter of  the  property,  in  the  libel  or  information.^  And  generally, 
where  the  law  presumes  the  affirmative,  the  proof  of  the  negative 
is  thrown  on  the  other  side  ;  and  where  any  justification  is  set  up, 
the  burden  of  proof  is  on  the  party  justifying.^  In  cases  of  appeals, 
also,  the  burden  of  proof  is  on  the  appellant,  to  demonstrate  be- 
yond a  reasonable  doubt  a  mistake  or  error  of  law  or  fact  in  the 
judgment  of  the  court  below,  or  gross  excess  in  the  amount  of 
damage  awarded.^ 

§  405.  And  so,  also,  respecting  the  requirement  of  the  best  evi- 
dence, the  principle  of  the  general  rule  is  admitted  in  courts  of  ad- 
miralty, although,  in  its  application,  evidence  is  sometimes  received 

1  The  Lipo,   2   Hagg.   356.     And   see  upon  probable  cause,  pursuant  to  the  Kev- 

The  Columbine,  2  W.  Kob.  30.     But  the  enue  Act,  U.  S.  Stat.  1799,  ch.  22,  §  71, 

burden   of  proving  that  a  collision    with  Vol.  1,  p.  678,  the   statute  expressly  de- 

a  vessel    at   anchor    arose  from     inevita-  volves  the  burden  of  proof  on  the  claim- 

blc  accident  lies   on   the   party  assertinj?  atit. 

it.     The  George,  9  Jur.  670.     See  iti/ra,  ^  United    States   v.   Ilayward,    2    Gall. 

§§  406,  407.     [Sec  The  Summit,  2  Curtis,  48.5. 

150. 1  *  Idem,  p.  498;    Trcadwell   v.  Joseph, 

'■'  The  Luminary,  8  Wheat.  407,  412.  1  Sumn.  390.  [*  Where  goods  shipped 
The  hurden  of  proof  is  generally  on  the  under  a  common  bill  of  lading  are  dam- 
claimant,  where  a  special  defence  is  set  up.  aged,  and  the  carrier  seeks  to  exonerate 
The  Short  Stajjle,  1  (iall.  104  ;  Ten  Hds.  himself  from  liability  by  reason  of  jjcrils 
of  Rum,  Id.  188.  And  where  the  fact  is  of  the  sea,  the  burden  of- proof  is  ujjou 
clear,  and  the  exi.laiiatiou  doubtful,  the  him.  The  Schooner  Kmma  Johnson, 
court  judges  by  the  fact.  The  Union,  1  Sprague's  Decisions,  .'327.] 
Hagg.  36;  Tlic  Paul  Sherman,  1  I'ct.  ^  Cushman  v.  Ryan,  1  Story,  R.  91, 
C.  C.  K.  98.     Where  a  seizure  is  made,  97. 


PART  VII.]  OF   EVIDENCE   IN   INSTANCE   CAUSES.  861 

as  the  best  evidence,  which  courts  of  common  law  and  of  equity 
would  reject.  This  arises  from  the  peculiar  nature  of  the  subjects 
and  circumstances  which  admiralty  has  to  deal  with,  and  from 
the  impossibility  of  otherwise  administering  justice  in  particular 
cases.  It  is  on  this  ground  that  the  testimony  of  the  persons  on 
board  the  ship  of  the  salvors,  and  of  the  wreck,  and  of  those  on 
board  ships  coming  in  collision,  is  sometimes  received,  even  when 
objectionable  at  law  on  the  score  of  interest,  or  on  other  grounds ;  ^ 
as  will  be  shown  in  another  place.  And  accordingly,  in  a  cause 
of  collision,  it  was  held,  that  the  protest  of  the  master  of  a  foreign 
vessel,  in  tow  by  the  vessel  run  foul  of,  being  res  inter  alios  acta, 
was  not  admissible  in  evidence,  except  in  a  case  of  necessity,  where 
other  evidence  could  not  be  obtained.^ 

§  406.  From  the  same  cause,  namely,  the  peculiar  necessity  aris- 
ing out  of  the  nature  of  transactions  on  shipboard  and  at  sea,  the 
rules  o(  j^resumptive  evidence  are  applied  more  familiarly  and  with 
a  larger  freedom  in  courts  of  admiralty  than  in  equity  or  at 
common  law.  This  is  especially  the  case  in  revenue  causes,  and 
in  cases  of  collision,  and  of  collusive  capture.  Accordingly,  where 
the  res  gestce,  in  a  revenue  cause,  are  incapable  of  an  explanation 
consistent  with  the  innocence  of  the  party,  condemnation  follows, 
though  there  be  no  positive  testimony  that  the  offence  has  been 
committed.^  And  when  the  question  arises  whether  an  act  has 
been  committed  which  is  a  cause  of  forfeiture,  an  apparent  inten- 
tion to  evade  the  payment  of  duties,  though  not,  per  se,  a  cause 
of  forfeiture,  will  justify  the  court  in  not  putting  upon  the  con- 
duct of  the  party  an  interpretation  as  favorable  as,  under  the  cir- 
cumstances, it  would  be  disposed  to  do.*  In  cases  of  collision,  also, 
where  the  evidence  on  both  sides  is  conflicting  and  nicely  bal- 
anced, while  the  court  will  be  guided  by  the  probabilities  of  the 
respective  cases  which  are  set  up,  it  will  at  the  same  time  pre- 
sume, a  priori,  that  the  master  of  a  ship  does  what  is  right,  and 
follows  the  regular  and  correct  course  of  navigation.^  It  will  also 
be  presumed,  in  maritime  transactions,  that  the  usual  and  ordina- 
ry course  of  conducting  business  was  pursued ;  as,  for  example, 
that  where  goods  are  shipped  under  the  common  bill  of  lading, 
they  were  shipped  to  be  put  under  deck.^    So,  in  cases  of  collision, 

1  See  infra,  §§  412,  414.  *  Ihid. 

2  The  Betsey  Caines,  2  Haeff.  28.  ^  The  Mary,  2  W.  Rob.  244. 

8  The  Robert  Edwards,  6  U'lieat.  187.  ^  Vernurd  c.  Hudson,  3  Sumn.  405. 


362  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VH. 

where  the  eviJence  is  nicely  balanced,  the  presumption  a  priori  is, 
that  the  master  wonld  follow  the  ordinary  course.^ 

§  407.  In  cases  of  collision,  the  rules  of  presumption  are  de- 
duced from  nautical  experience  and  the  settled  usages  of  navigation. 
Hence,  if  a  ship,  sailing  with  a  fair  wind,  runs  down  another  sail- 
ing upon  a  wind  or  plying  to  windward,  it  is  presumed,  primd  fa- 
cie, to  be  the  fault  of  the  former  ;  and  ships  are  sailing  large,  or 
going  before  the  wind,  in  the  same  the  burden  of  proof  is  adjusted 
accordingly.  So,  if  both  direction,  and  with  ample  sea-room,  and 
one  runs  foul  of  the  other,  it  is  presumed  to  be  the  fault  of  the 
pursuing  ship.  And  where  one  ship  is  at  anchor,  and  a  ship  un- 
der sail  runs  foul  of  her,  the  sailing  ship  is  presumed  to  be  in  fault. 
This  presumption  is  stronger  in  open  sea  than  in  rivers ;  but  it  has 
force  even  in  rivers,  where  due  allowance  ought  to  be  made  for  the 
current  or  tide  bearing  the  ship  out  of  her  apparent  course.^  It 
may  be  added,  in  this  connection,  that  it  is  a  well-established  rule, 
where  two  vessels  are  approaching  each  other  on  opposite  tacks, 
that  the  vessel  on  the  larboard  tack  must  "  give  way,"  and  the 
vessel  on  the  starboard  tack  must  keep  her  course  ;  ^  though  the 
former  may  be  close-hauled,  and  the  latter  may  have  the  wind 
several  points  free.^  If  the  former  should  endeavor  to  avoid  the 
collision  by  passing  to  windward,  instead  of  giving  way,  she  is  re- 
sponsible for  the  damage,  if  a  collision  should  ensue.^     So,  if  the 

1  The  Marv  Stewart,  2  W.  Rob.  244.  2  Wall.  C.  C.  268;    Ure  v.  Coffman,   19 

2  Van  Heythuyscn,  Mar.  Evid.  pp.  20,  How.  56  ;  N.  Y.  &  U.  S.  Co.  v.  Calder- 
21  ;  The  Woodrop  Sims,  2  Dods.  87 ;  The  wood,  Id.  241  ;  The  Rose,  2  W.  Rob.  4; 
Chestt-r,  3  IIa<i<,r.  318;  The  Baron  Hoi-  The  Iron  Duke,  lb.  377;  The  Victoria,  3 
ber<j,  Id.  21. t;  Sills  v  Brown,  9  C  &  P.  Id.  49.]  [*  By  the  maritime  law,  a  vessel 
601  ;  Tlie  Speed,  2  W.  Rob  22.5  ;  The  at  anclior,  in  a  thorouj^hfare,  in  a  dark 
Thames,  5  C.  Rob.  308;  The  Girolamo,  niji^ht,  is  bound  to  exhibit  a  light.  Lenox 
3  Haj^g.  173;  The  Batavicr,  10  Jur.  19;  v.  Winisimet  Company,  Spraguc's  Deci- 
[The    Clement,  2    Curtis,   363,   where   it  sions,  160] 

appears  thiU  if  one  vessel  had   neglected  ^  The  Ann  and  Mary,  2  W.  Rob.  189, 

an  ordinary  and  j)roper  measure  of  precau-  196;    The   Jupiter,    3    Ilagg.    320;    The 

tion,  the  burden  of  proof  will  lie  on  such  Alexaniler  Wise,  2  W  Rob.  65  ;  The  Ilar- 

vessel   to   show   that   the   collision    would  riet,  1  W.Rob.  182;  The  John  Brotherick, 

have    happened    without    her    fault.      See  8  Jur.  276;  The  IiCo|)ard,  Daveis,  R.  193. 

also   The   Virgil,   2   W.   Rob.   201;    The  The  expression  "giving  way,"  in  the  Trin- 

New  York  v.  Rea,  18  How.  223,  224;  The  ity  House  regulations,  means  getting  out 

H.  M.   Wri;;ht,  1    Newb    49.i.     Altiiough  of  the  way  by  whatever  may  be  the  proper 

there  is  no  rule  of  miiritiine  law  re(iuiring  measures,    whether   it   be    l)y    porting    or 

vessels  to  carry  lights  at  night,  yet  in  col-  starboarding  the  helm.     The   Gazelle,  10 

lision    cases   courts    of  admiralty    regard  Jur.  1065;  The  Lady  Anne,  15  Jur.   18; 

the  want  of  a  light  as  strong  evidence  of  1    Eng.  Law  &  Eq.   H.  670. 

negligence      This  is  more   especially    the  ■*  The  Traveller,  2  W.  Rob.  197;    The 

case  with  vessels  lying  at  anchor  in    the  Speed,  Id.  225  ;  The  Jupiter,  3  Hagg.Adm. 

l>ath  of  other  vessels.     But  the  omission  R.  320. 

is  oidy  cvidenee  of  lU'gligence  and  does  not  ''  The  Mary,  2  W.  Rob.  244. 
constitute  it  in  all  cases.     Sec  The  Osprey, 


PART  VII.] 


OF   EVIDENCE   IN   INSTANCE   CAUSES. 


363 


latter,  with  the  like  endeavor,  should  bear  up,  instead  of  keeping 
her  course.^  But  though  these  rules  are  not  lightly  to  be  disre- 
garded, yet  no  vessel,  especially  a  steamer,  should  unnecessarily 
incur  the  probability  of  a  collision,  by  a  pertinacious  adherence  to 
them ;  but  where  there  is  imminent  danger  of  collision,  shipmas- 
ters are  bound  to  use  whatever  prudential  measures  the  crisis  may 
require,  in  order  to  avoid  it.^  A  steamer  is  always  to  be  treated 
as  a  vessel  sailing  with  a  fair  wind ;  and  is,  in  all  cases,  bound  to 
give  way  to  a  vessel  moved  by  sails.^ 

§  408.  In  regard  to  the  presumption  arising  from  the  non-produc- 
tion or  the  spoliation  of  papers,  as  the  title  to  ships  and  their  car- 
goes is  to  be  proved  chiefly  by  documents,  and  these  it  is  generally 
in  the  power  of  the  true  owner  either  to  produce,  or  satisfactorily 
to  account  for  their  absence  ;  their  non-production  always  leads  to 
inferences  unfavorable  to  title  of  the  claimant.*  Hence  the  rule 
of  omnia  prceswmintur  contra  spoliatorem  is  administered  in  the 
courts  of  admiralty  with  more  frequency  and  a  more  stringent 


1  The  Jupiter,  3  Hagg.  320 ;  The  Caro- 
lus,  Id.  343,  n. 

2  The  Hope,  I  W.  Rob.  1.57;  The  Vir- 
gil, 2  \V.  Rob.  201  ;  The  Itinerant,  Id. 
2-10 ;  The  Bleiilieim.  10  Jur.  79 ;  Tlie 
L.idv  Anne,  1  Eng.  Law  &  Eq.  R.  670 ; 
1.5  Jur.  18,  S.  C.  [*  The  Ann  Caroliue, 
2  Wallace,  U.  S.  R.  538.] 

3  'I'he  Leo]iard,  Daveis,  R.  193,  197  ; 
The  Shannon,  2  Hagg.  1 73  ;  [The  Eastern 
State,  2  Curt.  C.  C.  141  ;]  3  Kent,  Comm. 
231.  [In  England  the  rule  is  that  when 
a  sailing  vessel  going  free  meets  a  steamer, 
boih  must  turn  to  the  right,  the  steamer 
being  regarded  as  a  vessel  going  free.  The 
(^ity  of  London,  4  Notes  of  Cases,  40  ; 
Merchants'  Shipping  Act,  17  &  18  Vict. 
§  296.  But  in  the  United  States  the  rule 
lias  been  declared  to  be  as  laid  down  in  the 
text,  and  the  steamer  must  give  way  in  all 
cases.  The  Osprey,  17  Law  Rep.  384; 
The  Steamer  Oregon,  18  How.  .570.] 
Respecting  steamers  generally,  it  was  re- 
marked, by  Sir  John  Nicholl,  that  "  they 
are  a  new  species  of  vessels,  and  call  forth 
new  rules  and  considerations  ;  they  are  of 
vast  power,  liable  to  inflict  great  injury, 
and  particularly  dangerous  to  coasters,  if 
not  most  carefully  managed  ;  yet  they  may, 
at  the  same  time,  with  due  vigilance,  easily 
avoid  doing  damage,  for  they  are  much 
under  command,  both  by  altering  the  helm 
and  by  stopping  the  engines  ;  they  usually 
belong  to  great  and  opulent  companies, 
and  are  fitted  out  at  great  cost ;   and  on 


these  considerations,  when  they  afford 
assistance,  they  obtain  a  large  remunera- 
tion. The  owners  of  sailing  vessels  have, 
I  think,"  added  he,  "  a  right  to  expect 
that  steamers  will  take  every  possible  pre- 
caution." The  Perth,  3  Hagg.  Adm.  R. 
415,  416;  [The  Europa,  2  Eng.  Law  & 
Eq.  557.]  Hence  the  general  rule  in  the 
text  has  been  adopted;  and  accordingly  it 
has  been  held,  that  a  steamer,  descending 
a  river  in  the  night,  and  meeting  a  sailing 
vessel  ascending,  is  bound  to  ease  her 
engine  and  slacken  her  speed,  until  she 
ascertains  the  course  of  the  sailing  vessel. 
The  James  Watt,  2  W.  Rob.  270.  The 
usage  on  the  river  Ohio,  at  all  times,  is,  that 
when  steamers  are  approaching  each  other 
in  opposite  directions,  and  a  collision  is 
apprehended,  the  descending  boat  must 
stop  her  engine,  ring  her  bell,  and  float; 
leaving  to  the  ascending  boat  the  option 
how  to  pass.  Williamson  v.  Barrett,  13 
How.  S.  C.  R.  101.  [*  In  Pearce  v.  Page, 
24  How.  228,  which  was  the  case  of  a 
collision  between  a  flat-boat  descending, 
and  a  steamer  ascending  the  Ohio  River, 
McLean,  J.,  says  :  "  The  self-moving  power 

must  take  the   responsible   action 

When  a  floating  boat  follows  the  course 
of  the  current,  the  steamer  must  judge  of 
its  course  so  as  to  avoid  it.  This  may  be 
done  by  a  proper  exercise  of  skill,  which 
the  Reamer  is  bound  to  use."] 

*  See  ante,  Vol.  1,  §  37  ;  Owen  v.  Flack, 
2  Sim.  &  Stu.  606. 


364  LAW    OF   EVIDENCE   LN   ADMIRALTY.  [PART  VIL 

application  than  in  any  other  tribunals.^  Thus,  though  the  spoli- 
ation of  papers  is  not,  per  se,  a  cause  of  condemnation,  yet  if  it  is 
attended  with  other  circumstances  of  suspicion,  the  guilty  party 
will  not  have  the  aid  of  the  court,  or  be  admitted  to  further 
proof  ;^  but,  on  the  other  hand,  if  such  spoliation  appears,  in  a 
case  otherwise  favorably  circumstanced  for  the  party,  the  court, 
for  its  own  satisfaction,  will  order  further  proof  at  his  expense.^ 
The  mere  suppression  or  non-production  of  papers,  not  destroyed, 
leads  to  a  similar  unfavorable  inference.  Thus,  in  a  cause  of 
damage,  where  the  master  of  the  aggressive  ship  addressed  a  let- 
ter to  his  owners,  and  gave  it  to  the  master  of  the  damaged  vessel 
to  be  delivered  to  them,  but  the  owners  did  not  produce  the  letter ; 
it  was  presumed  that  the  letter  contained  an  admission  of  the 
damage.*  And  we  may  here  add,  that  the  production  of  docu- 
ments in  admiralty  is  governed  by  rules  substantially  like  those 
in  similar  cases  in  equity,  which  have  already  been  considered.^ 

2.  COMPETENCY  OF  WITNESSES. 

§  409.  In  the  Roman  law,  evidence  was  distinguished  into  two 
classes,  namely,  plena  probatio,  or  full  proof,  and  seynipleria  proha- 
tio,  or  half  proof.  The  former  consisted  of  admissions  and  con- 
fessions, the  testimony  of  witnesses,  public  written  instruments 
and  deeds,  judicial  oaths  and  presumptions  juris  et  de  jure.  The 
latter  consisted  of  the  testimony  of  a  single  witness,  private  books 
of  account,  common  fame,  and  comparison  of  handwriting.  And 
the  conjunction  of  two  half  proofs  amounted  to  full  proof.^  But 
though  a  single  witness  ordinarily  made  but  half  proof,  yet  ex- 
ceptions were  admitted  to  this  rule,  where,  in  cases  of  great  diffi- 
culty, no  other  evidence  could  possibly  be  had,  and  in  cases  of 
minor  importance,  or  where  the  witness  was  of  extraordinary  rank 
or  character;"  and,  on  the  other  hand,  common  fame,  in  some 

1  The  Hunter,!  Dods.  480;  The  Liver-  '  Idem,  385.  These  exceptions  .are  thus 
pool  Paelvct,  1  Gall.  518.  And  see  itifra,  enumerated  by  Mascardiis  :  Cuando  uni- 
8  452.  us  testis  depositio  neuiini  nocet,  et  altcri 

2  The  Uisinj,'  Sun,  2  C.  Rob.  104,  106;  prodest ;  —  quando  esset  arduum,  vel  nuUo 
The  Pi/.arro,  2  Wheat.  227,  241 ;  Tiie  modo  fieri  posset,  ut  plures  possint  haberi 
Juflfrouw  Anna,  1  C.  Hob.  125;  The  Wcl-  testes;  —  quundo  sumns  in  causis  posses- 
vaart.  Id.  122,  124;  The  Eenrom,  2  C.  sorii,  quaequo  nullius  jn-openiodum  sint 
liob.   1,   15.  pondoris  ;  —  in  causis  qure  l)rcviter  et  sum- 

8  Tiie  rollv,  2  C.  Rob.  361.  niaric    absolvuntur    et    dirimuntur,    teste 

♦  The  Neptune  2d,  1  Dods.  469.  valde  dit,'no.     Mascard.  Dc  I'rob.  (^uaest. 

6  Supra,  §§  295-307.  11,  n.  14,  17,  18,  19. 
6  2  Urowiie,  Civ.  &  Adm.  L.  370,  385. 


PART  VIl]  OF   EVIDENCE   IN   INSTANCE   CAUSES.  865 

cases,  was  received  as  equivalent  to  full  proof.^  But  this  distinc- 
tion of  proofs  is  scarcely  known  in  most  of  the  American  courts, 
and  is  seldom  admitted  in  any  of  them  as  a  rule  of  decision  ;  but 
is  recognized  chiefly  as  the  original  source  of  the  rule  by  which,  in 
certain  cases,  the  oath  of  the  party  may  be  .received.^ 

§  410.  In  regard  to  the  competency  of  the  parties  as  witnesses, 
there  are  three  cases  in  which  their  oaths  are  admitted  at  hearings 
upon  the  merits,  in  courts  of  admiralty.^  The  first  of  these 
is  where  the  suppletory  oath  is  required.  This  oath,  as  its  name 
imports,  was  not  admissible  by  the  Roman  law,  unless  in  aid  of 
other  testimony  and  to  supply  its  deficiencies.  If  nothing  was 
proved,  or  if  full  proof  was  made,  there  was  no  place  for  a  supple- 
tory oath.  It  was  only  where  half  proof  was  exhibited,  and  in  the 
absence  of  any  other  means  of  making  full  proof,  that  the  party's 
own  oath  was  received,  as  the  complement  of  the  measure  of  tes- 
timony required ;  and  this  might  be  administered  in  all  cases.* 
But  in  the  practice  of  our  own  admiralty  courts,  though  the  right 
of  resorting  to  the  suppletory  oath  in  all  cases  of  partial  proof  is 
still  insisted  on,^  yet  it  is  not  ordinarily  administered,  except  in 
support  of  the  party's  books  of  account,  or  other  original  charges 

1  Mascard.DeProb.  Concl.  236  n.  1,  2;  of  court  and  to  the  law,  and  therefore 
Id.  Concl.  396,  n.  2  ;  Id.  Concl.  750,  n.  1.  pray  that  the  suppletory  oath  may  be  ad- 
Common  fame,  among  the  civilians,  was  ministered  to  me,  for  so  the  law  and  justice 
distinguished  from  notoriety,  which  they  require.' 

defined  as   a  spi-eies   of  proof,  se  oculis  "  Then  the  Proctor  of  the  adverse  party 

hominum,  aut  raajoris  partis  exhibentem,  will  say:  — 

ut  nulla  possit  tergiversationc  celari  aut  " '  I  deny  that  those  allegations  are  true. 

negari,   utpote   cujus   universus    populus,  I  protest  of  their  nullity,  and  I  allege  that 

aut   major   pars   ejus,    testis   esse    possit.  the  said  oath  ought  not  to  be  administered, 

Mascard.    De    Prob.    Con.    1107,    n.    4.  referring  myself  to  law.' 

And  see  2   Browne,  Civ.  &   Adm.  L.  p.  "  Then  the  Judge  shall  assign  a  time  to 

370.  hear  the  parties  and  decree  thereon.    And 

'^  See  ante,  Vol.  1,  §  119.  if  he  shall  be  satisfied  that  the  party  who 

3  [*  In  the  United  States  the  rules  of  prays  to  have  the  oath  administered   to 

evidence  in  admiralty  cannot  be  changed  hini  has  made  more  than  half  proof,  or  at 

by  a  State   statute.     The   Ship  William  least  half  proof  of  his   allegation,  he   is 

Jarvis,    Sprague's    Decisions,  48.').]  bound  to  administer  the  oath  to  him  in 

*  Hall's  Adm.  Pract.  p.  93 ;  Benedict's  those  cases  in  which  the  law  permits  it ; 

Adm.  Pract.  §  .536 ;  Dunl.  Adm.  Pract.  p.  consult,  however,  with  experienced  practi- 

286 ;    2  Browne's  Civ.  and  Adm.  L.  p.  tioners,  as  to  what  those  cases  are.     Theii 

384.     The  practice  in  such  cases  is  thus  the  party  shall  make  oath, '<Aaf  o/ ^/s  ojtvi 

stated  by  Mr.  Hall,  from  Oughton's  Eccl.  certain  I'nowledge  the  facts  stated  in  his  alle- 

Pract.  ti"t.  186.     "If  the  plaintiff  has  not  gation  are  true. 

fully  proved  his  allegation,  but  has  only  "If,  however,  the  party  against  whom 

given    a  half-proof  thereof  (semiplena  pro-  the  oath  is  prayed  should  be  proved  by  his 

/(o^i'o),  he  may  appear  before  the  Judge  and  adversary  to  be  a  person  of  infamous  or 

propound  as  follows: —  bad  character,  the  oath  is  then  in  no  case 

"  '  I,  N.,  do  allege  that  I  have  proved  to  be  administered  to  him."     Hall's  Adm. 

the  allegations  contained  in  my  libel,  &c.     I  Fract.  ubi  supra. 

say  that  I  have  proved  them  fully,  or  at  ^  D^nl.  Adm.  Pract.  p.  288;  Benedict, 

least,  half  fully;  1  refer  myself  to  the  acts  Adm.  Pract.  §  536. 


566 


LAW   OF    EVIDENCE   IN   ADMIRALTY. 


[part  VIL 


of  the  like  nature,  as,  for  example,  charges  made  by  tlie  master, 
on  the  back  of  the  shipping  paper,  of  advances  made  to  the  seamen 
in  the  course  of  the  voyage.^ 

§  411,  In  the  second  place,  parties  may  be  admitted  to  what  is 
termed  the  oath  decisory.  Tliis  oath  was  of  familiar  use  in  the 
Komau  tribunals.  It  might  be  administered  by  the  judge  to 
either  party,  for  the  more  perfect  satisfaction  of  his  own  con- 
science in  cases  rendered  doubtful  by  the  weakness  or  contradic- 
tions of  the  testimony  already  in  the  cause ;  or  it  might  be  ten- 
dered by  one  of  the  parties  to  the  other,  submitting  to  have  the 
cause  decided  by  the  oath  of  his  adversary  ;  which  the  adverse 
party  must  either  accept,  or  tender  back  a  similar  offer ;  failing 
to  do  which,  he  must  be  condemned,  as  confessing  the  allegations 
against  hira.^     This  mode  of  proof  is  known  to  have  been  resorted 


1  Ibid.  The  David  Pratt,  Ware,  K. 
496,  .505.  And  see  ante,  Vol.  1,  §§  117- 
119,  as  to  the  admissibility  of  books  of 
account. 

2  The  use  of  this  oath  is  founded  upon 
several  texts  of  the  civil  law.  Maximum 
remudium  exp -diendarum  litium  in  usum 
venit  jurisjurandi  reli^io ;  (jua,  vel  ex 
pactione  ipsorum  liti<^atorum,  vel  ex  auc- 
toritate  judicis,  deciduntur  controvcrsiae. 
Dig.  lib.  12,  tit.  2.  1.  1.  Pothier  derives 
its  authority  from  the  texts,  —  Solent  enim 
S£epe  judici'S,  in  dubiis  causis,  exacto  jure- 
jurando,  secundum  eum  judicare  qui  jura- 
verit;— Di^.  lib.  12,  tit.  2,  I.  .31  ;— and, 
in  bona;  fidei  contractibus,  nccnon  [etiamj 
in  caBtmis  causis,  inopia  probationum,  per 
judiccm  jurejurando  causa  coj^nita  res 
decidi  oportet.  Cod.  lib.  tit.  1, 1.  3.  Upon 
these  he  comments  as  follows  :  — 

"  From  tlipsc  texts  it  follows,  that  to 
warrant  the  a])plication  of  this  oath,  three 
things  must  concur  :  — 

"  1.  The  demand  or  the  exceptions 
must  not  be  fully  proved,  as  appears  by 
the  terms  of  L.  ^^,  Cod.  —  inoi'IA  pkoiia- 
TiONiTM.  When  the  demand  is  fully 
proveil,  the  judge  condemns  the  defendant 
witliout  having  recourse  to  the  oath  ;  and 
on  the  otiier  hind,  when  the  exceptions 
are  fully  proved,  the  defendutit  must  be 
discharged  from  the  demand. 

"  2.  The  demand,  or  exceptions,  al- 
though not  fully  ])roved,  must  not  be 
wholly  destitute  of  proof;  this  is  the  sense 
of  the  terms,  in  relnts  dnhiis,  made  use  of  in 
the  liaw  .'51  ;  this  expression  is  apjilied  to 
cases  in  which  the  di-maud,  or  exceptions, 
are  neither  eviih'iitlv  just,  thi>  proof  being 
not  full  and  complete,  nor  evidently  unjust, 
there  being  a  sufficient  commencement  of 


proof.  In  quibus,  says  Vinnius,  Sel. 
Quaest.  1,  44,  judex  dubius  est,  ob  minus 
plenas  probationes  allatas. 

"  .3.  The  judge  must  have  entered  upon 
the  cognizance  of  the  cause,  to  determine 
whether  the  oath  ought  to  be  deferred, 
and  to  which  of  the  parties.  This  results 
from  the  terms  causa  cor/nifd,  in  L.  31. 

"  This  cognizance  of  the  cause  consists 
in  the  examination  of  the  merits  of  the 
proof,  of  the  nature  of  the  fact,  and  the 
qualities  of  the  parties.  When  the  proof 
of  the  fact  which  is  the  subject  of  the 
demand,  or  the  exceptions,  and  upon 
which  the  decision  of  the  cause  depends, 
is  full  and  complete,  the  judge  ought  not 
to  defer  the  oath,  but  to  decide  the  cause 
according  to  the  proof. 

"  Nevertheless,  if  the  judge,  for  the  more 
perfect  satisfaction  of  his  conscience,  defers 
the  oath  to  the  party  in  whose  favor  the 
decision  ought  to  be,  and  the  fiict  upon 
which  it  is  deferred  is  the  proper  act  of  the 
party  himself,  and  of  which  he  cannot  be 
ignorant,  he  cannot  refuse  to  take  it,  or 
appeal  from  the  sentence  ;  for  although  the 
judge  might,  and  even  ought,  to  have  de- 
cided the  cause  in  his  favor,  without  re- 
quiring this  oath,  the  proof  being  com- 
])lete,  he  has  still  done  no  injury  by  requir- 
ing it,  since  it  costs  the  party  nothing  to 
affirm  what  is  true,  and  his  refusal  weak- 
ens and  destroys  the  proof  which  he  has 
made. 

'•  Wiien  the  plaintiff  has  no  proof  of  his 
demand,  or  the  proof  which  ho  offers  only 
raises  a  slight  presumption,  the  judge 
ought  not  to  defer  the  oath  to  him,  how- 
ever worthy  of  credit  Ik;  may  be.  Never- 
theless, if  the  circumstances  raise  some 
doubt  in  the  mind  of  the  judge,  he  may, 


PART  VII.]  OF   EVIDENCE   IN  INSTANCE   CAUSES.  367 

to  ill  some  cases  in  the  American  courts,  so  far  at  least  as  a  ten- 
der of  the  oath  by  one  party,  and  its  acceptance  by  the  other  ;  ^  but 
the  freedom  with  which  parties  may  interrogate  each  other,  in 
Ihnine  and  the  infrequency  of  any  occasion  to  advert  to  the  dis- 
tinction between  full  and  half  proof,  restricted,  as  we  have  just 
seen  it  to  be,  to  cases  of  book  accounts  and  the  like,  have  rendered 
the  oath  decisory  nearly  obsolete  in  modern  practice. 

§  412.  In  the  third  place,  parties  are  sometimes  admitted  as 
ivitnesses  from  necessity.  We  have  shown,  in  a  preceding  vol- 
ume,2  that  in  some  of  the  courts  of  common  law,  parties  have  on 
this  ground  been  held  competent  witnesses,  while  in  some  others 
this  has  been  doubted  or  denied.  '  But  however  this  point  may  be 
held  in  the  common  law  tribunals,  the  course  of  the  courts  of 
admiralty,  and  the  nature  of  the  causes  before  them,  frequently 
requires  the  admission  of  this  kind  of  evidence,  without  which 
there  would  often  be  a  failure  of  justice.  Thus,  salvors,  though 
parties  to  a  suit  for  salvage,  are  admitted  ex  necessitate  as  witnesses 
to  all  facts  which  are  deemed  peculiarly  or  exclusively  within  their 
knowledge  ;  but  to  other  facts  they  are  incompetent ;  on  the  gen- 
eral ground  that  they  are  both  parties  and  interested.  The  excep- 
tion arises  from  the  necessity  of  trusting  to  their  testimony  or  being 
left  without  proof;  and  it  is  admitted  no  further  than  this  neces- 
sity exists.^  Parties  in  prize  causes  are  also  admitted  as  witness- 
es, on  the  same. principle,  as  hereafter  will  be  seen.     And  gener- 

to  satisfy  his  conscience,  defer  the  oath  to  difference  between  an  oath  deferred  by  the 

the  defendant.  judge,  and  that  deferred  by  the  party  ;  the 

"  So,  when  the  demand  being  made  out,  latter    may  be    referred    back  ;    whereas, 

the  exceptions  against  it  are  only  support-  when  the  oath  is  deferred  by  the  judge, 

cd  by  circumstances,  which  arc  too  slight  the  party  must  either  take  it  or  lose  his 

to  warrant  deferring  the  oath  to  the  defend-  cause  ;  such   is    the   practice   of  the    bar, 

ant,  the  judge  may,   if  lie  thinks  proper,  which  is  without  reason  charged  by  Faber 

defer  the  oath   to  "the  plaintiff,   before  he  with  error  ;  in  support  of  it,  it  is  sufficient 

decides  in  his  favor.  to  advert  to  the  term  reft-r ;  for  I  cannot 

"  I  would,  however,  advise   the  judges  be  properly  said  to  refer  the  oath  to  my 
to  be  rather  sparing  in    the   use  of  these  adversary,    unless    he    has  previously    de- 
precautions,  which  occasion  many  perjuries,  ferred  it  to  me.     See  Vim.    Sel.    Quasst. 
A  man  of  integrity  does  not  require  the  143."     Poth.  Obi.  Nos.  829-835. 
obligation  of  an  oath,  to  prevent  his   de-  ^  Dunl.  Adm.  Pract.  p  290. 
nianding  what  is  not  due  to  him,  ordisput-  ^  Ante,  Vol.  1,  §  348 
ing  the  payment  of  what  he  owes;  and  a  ^  The  Henry   Kwbank,    1    Sumn.  400, 
dishonest  man  is  not  afraid  of  incurring  432.      And    see    the    Sara   Barnardina,    2 
the  guilt  of  perjury.     In  the  exercise  of  my  Hagg.   1.51;  The  Pitt.   Id.  149,    n. ;  The 
profession  for  more  than  forty  years,  I  have  Elizal)eth   and  Jane,   Ware,   R.    3.5;    Tlie 
often  seen  the  oath  deferred  ; "and  I  have  Boston,    1    Sumn.    328,    345.     The    testi- 
not  more  than  twice  known    a   party  re-  mony  of  parties  in    admiralty,  it  is  said, 
strained  by  the  sanctity  of  the  oath  'from  ought  never  to  be    taken  exi  ept  under  a 
persisting  in  what   he  "had  before  assert-  special    order    of    court,    and     for    cause 
ed.  shown,  as  in  equity.     Ibid.     [*  See  Swett 

"  It  remains  to  observe  the   following  v.  Black,  Sprague's  Decisions,  574.] 


368  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VIL 

ally,  where  the  cause  of  action  is  established  aliunde,  and  the  loss 
is  proved  to  have  been  occasioned  by  the  fraud  or  tortious  act  of 
the  defendant,  nothing  remaining  to  be  shown  except  the  value  of 
the  property  lost,  taken  away,  or  destroyed,  and  this  being  inca- 
pable of  proof  by  any  other  means,  it  may  be  ascertained  by  the 
oath  of  the  plaintiff. ^ 

§  413.  The  ansiver  of  the  defendant,  though  sworn  to,  and  re- 
sponsive to  the  libel,  has  not  the  same  weight  in  courts  of  ad- 
miralty as  in  chancery,  nor  is  it  regarded  strictly  as  testimony, 
to  all  intents,  or  as  full  proof  of  any  fact  it  may  contain  ;  and  yet 
it  is  not  wholly  to  be  disregarded  by  the  judge,  or  treated  as  a 
merely  formal  statement  of  the  ground  of  defence.  When  it  is 
carefully  drawn,  and  it  appears,  from  comparing  it  with  the  facts 
proved  in  the  case  by  disinterested  witnesses,  that  the  defendant 
has  stated  his  case  fairly,  or  with  no  more  than  that  bias  which 
one  naturally  feels  towards  his  own  cause,  and  with  no  more  col- 
oring than  an  upright  man  might  insensibly  give  to  facts  in 
which  his  interest  and  feelings  are  involved,  it  may  justly  have 
a  material  influence  on  the  mind  of  the  judge,  in  coming  to  a 
final  result.  But  there  is  no  technical  rule  in  the  admiralty, 
like  that  in  chancery,  which  binds  the  conscience  of  the  court, 
or  determines  tlie  precise  degree  of  credit  to  which  the  answer  is 
in  all  cases  entitled,  or  the  quantity  of  evidence  by  which  it  may 
be  overborne ;  but  it  receives  such  weight  as,  in  the  particular 
state  of  the  proofs,  and  under  all  the  circumstances,  the  judge 
may  deem  it  to  deserve.^  A  claim  to  a  vessel  or  cargo,  inter- 
posed in  a  suit  for  a  forfeiture,  though  sworn  to,  has  not  in  any 
sense  the  dignity  of  testimony,  and  is  not  received  in  evidence ;  but 
is  said  to  amount,  at  most,  to  "the  exclusion  of  a  conclusion." ^ 
But  where  the  libellant  specially  requires  the  answers  of  the  de- 
fendant, under  oath,  to  interrogatories  distinctly  propounded  to 

1  2  Browne,  Civ.  &  Adm.  Law,  p.  384  ;  ^  Hutson  v.  Jordan,  Ware,  R.  385,  387  - 

Dunl.  A.lin.  Pnut.  p.  2S7  ;  Ante.,  Vol.  1,  389,  394;  The  Crusader,  Id.  443;  Sher 

§  .'US   n      The   Hoinan   law  distinguished  wood  y.  Hall,  3  Sumn.  127.  131.     And  see 

i)ctween  loss-s  bv  the  mQvcfanli  of  the  de-  The  Matilda,  4    Hall,   Law  Journ.   487  • 

fendant.  and  losses  occasioned  by  hia  fraud.  The  Thomas  and  Henry,  1    Brock.  367 

In  the  former  case,  the  property  was  esti-  Cushman  v.  Ryan,  1    Story,  R.   91,    103 

mated  at  its  intrinsic  value,  by  the  jura-  Jay  v.  Almy,  1    Woodb.  &  M.  2_62,  267 

mctitum  veriltifis,  or  ontli  of  truth';  in  the  lat-  [Andrews  v.  Wall,  3  How.  5C8,  572  ;  The 

ter,  by  the  jurawentam  nffcrtionis,  at  its  pe-  Steamboat    H.    D.  Bacon,  1   Newb.    276  ; 

cul'iar  value  to  the  owner,  as   a  matter  of  The  Napoleon,  Olcott,  208.] 

personal  attachmi-nt.     I'oth.  Obi.  No.  836 ;  3  The  Thomas   and   Henry,    1    BrocL 

2  Browne,  Civ.  &  Adm.  Law,  supra.     But  367. 
this  distinction  is  not  recognized  in  mod- 
ern practice. 


PART  VII.]  OF   EVIDENCE   IN  INSTANCE    CAUSES.  369 

him,  touching  the  matters  in  issue,  which  by  the  course  of  the 
court  he  has  a  right  to  do,  these  answers  are  treated  as  evidence  in 
the  cause  for  either  party,  as  in  chancery.  But  here,  also,  as  in 
the  case  of  the  answer  to  the  libel  itself,  no  particular  quantity  of 
proof  is  required  to  overcome  the  answers  to  the  interrogatories  ; 
but  they  are  weighed  like  other  testimony.^ 

§  414.  In  regard  to  persons  not  parties  to  the  suit,  the  general 
rule  as  to  their  incompetency  as  witnesses,  when  interested  in  the 
cause,  is  adopted  in  the  admiralty,  as  an  instance  court,^  in  like 
manner  as  at  common  law.^  But  the  exceptions  to  this  rule,  on 
the  ground  of  necessity,  are  of  much  more  frequent  occurrence  in 
the  admiralty,  arising  from  the  nature  of  maritime  affairs.  Thus, 
in  a  cause  of  collision,  the  crew  of  the  vessel  proceeded  against  are 
held  competent  witnesses  from  necessity,  notwithstanding  they  may 
be  sharers  in  the  profits  and  losses  of  the  vessel,  and  do  not  deny 
their  interest  in  the  suit.^  Sometimes  parties,  thus  interested,  are 
not  admitted  as  witnesses  until  they  have  released  their  interest 
and  are  thereupon  dismissed  from  the  suit ;  ^  but  the  testimony  of 
mere  releasing  witnesses,  it  is  said,  ought  not  to  be  relied  on  to 
prove  a  fundamental  fact  in  a  cause.^ 

1  The  David  Pratt,  Ware,  R.  495  ;  Jay  mate  and  crew  were  not  competent  to  be 
V.  Almy,  1  W.  &  M.  262.  And  see  Rules  received;  but  that  those  of  the  master  were 
in  Admiralty,  Reg.  23,  27  -  30  ;  2  Browne,  admissible.  The  Midlothian,  1 5  Jur.  806  ; 
Civ.  &  Adm.  Law,  416  ;  Gierke's  Praxis,  .5  Eng.  Law  and  Eq.  R.  556.  [*  In  a  suit 
tit.  14;  Gammell  I'.  Skinner,  2  Gall.  45;  by  tlie  holder  of  a  bottomry  bond  given 
»S'«/i7-a,  §§  395,  398.  [A  foreigner  is  not  by  the  master  of  a  vessel,  in  a  foreign  port, 
chargeable  upon  his  declarations  or  admis-  for  necessary  supplies,  the  master  is  a 
sions  in  English,  without  clear  proof  that  competent  witness  to  prove  that  the  sup- 
he  thoroughly  understood  what  he  said  plies  were  furnished,  and  that  they  were 
and  what  was  said  to  him.  The  Lotty,  necessary.  The  Medora,  Sprague's  De- 
Olcott,  329.]                                                   '  cisions,   138.] 

'■2  Tlie  Boston,  1  Sumn.  328,  343.  &  The  Pitt,  2  Hagg.  149,  n.     And  see 

3  [The  State  statutes  admitting  the  tes-  The  Celt,  3  Hagg.  323. 
timony  of  parties  and  interested  witnesses,         ^  La  Belle  Coquette,   1  Dods.  19.     But 

though   adopted,   in    the    United    States  in  cases  of  slave-capture,  the  evidence  of 

courts,  in    the  trial  of  civil  cases  at  the  releasing  witnesses  has  been   held  good, 

common    law,  have   no  effect    upon    the  The  Sociedade  Feliz,  2  W.  Rob.  160.     An 

practice    of   those    courts    in    admiralty,  informer,  who  is  entitled  to  a  portion  of  a 

The  Independence,  2  Curtis,  C.   C.  350.  fine,  forfeiture,  or  penalty,   is   ordinarily 

And  see  The  Neptune,  Olcott,  483.]  not  admissible  as  a  witness  for  the  prosc- 

*  The    Catherine   of    Dover,   2    Hagg.  cution.      The    statute   only   renders   him 

\  45  ;    [The   Osceola,   Olcott,   450  ;      The  competent  when  "  he  shall  be  necessary  as 

Hudson,  Id.  396.]     In  a  cause  of  damage  a  witness  on  the  trial  "  ;  of  which  necessi- 

by  collision,  the  respondent  pleaded  as  an  ty  the  court  must  judge,  after  hearing  the 

exhibit  a  paper  signed  bv  the  master  and  other  testimony.     The  Thomas  &  Henry, 

crew  of  the  ship  of  the  libellant,  and  a  dee-  1   Brock.  367  ;"  U.  S.  Stat.  1799,  ch.    22,. 

laration    of    the  mate   of  the   same    ship.  §  91,  Vol.  1,  p.  697.     [The  master  who  hy- ' 

The  mate  and  crew  were  interested  in  the  pothecated  the  vessel  on  a  bottomry  bond 

suit,  in  respect  of  their  clothes,  which   had  is  a  competent  witness  for  the  bondholder, 

gone  down  in  the  ship.     It  was  held  that  especially  if  released   by  him.     The  Brig 

the   admissions   and   declarations    of  the  Magoun,  Olcott,  55.] 

VOL.  III.  24 


370  LAW    OF   EVIDENCE   IN   ADMIRALTY.  [PART  VIL 

§  414  a.  The  admissibility  of  a  shipynaster  as  a  witness  for  the 
owners,  in  a  seaman's  libel  against  them  for  wages,  may  seem  to  fall 
under  the  operation  of  the  same  principle,  so  far  as  he  may  be 
deemed  interested  to  defeat  the  claim.  But,  in  truth,  there  seems 
to  be  no  general  objection  to  his  competency  in  such  cases,  though, 
as  Lord  Stowell  remarked,  it  certainly  may  be  necessary  to  watch 
his  testimony  with  jealousy,  as  his  conduct  may  constitute  a  mate- 
rial part  of  the  adverse  case.^ 

§  415.    The  case  of  seamen,  joint  Ubellants  for  wages  in  a  court 
of  admiralty,  properly  falls  under  this  head.     For,  though  by  the 
admiralty  law,  they  all  may  join  in  the  same  libel,  as  a  matter  of 
favor  and  privilege,  on  the  general  ground  of  the  nature  of  their 
employment,  and  by  our  statute,^  in  proceedings  in  rem  for  wages 
they  are  bound  so  to  do,  the  general  privilege  of  admiralty  law 
being  thus  converted  into  a  positive  obligation ;  yet  they  are  not 
therefore  regarded  as  joint  parties  in  one  suit.     The  contract  is 
treated   as   a  several   and   distinct   contract  with    each    seaman. 
Their  rights,  respectively,  are  separate,  and  the  defences  that  may 
be   set  up  by  the  owners  of  the  ship,   against  the  claim  of  one 
seaman,  may  be  wholly  inapplicable  to  that  of  another.     The  an- 
swer, therefore,  when  not  equally  applicable  to  all  the  crew,  con- 
tains in  separate  allegations  what  is  specially  appropriate  to  each  in 
particular;  and  the  decree  pursues  the  same  course,  assigning  to 
each  seaman  the  amount  of  wages  to  which  he  is  entitled  and  dis- 
missing the  libel  as  to  those  who  are  not  entitled  to  any.     And  no  one 
can  appeal  from  a  decree,  made  in  regard  to  the  claim  of  another. 
Their  only  interest,  then,  in  respect  to  the  claims  of  each  other, 
arises  from  their  joint  liability  to  costs  ;  and  as  the  costs  are  with- 
in the  discretion  of  the  court,  this  interest  is  not  deemed  sufficient 
to  render  them  incompetent  as  witnesses  for  each  othcr.-^     At  all 
events,  it  is  in  the  power  of  the  court,  on  motion,  to  discharge 
from  the  libel,  with  their  own  consent,  those  whose  testimony  may 
be  required.*     But  it  has  been  held,  that  ordinarily  one  seaman 
cannot  be  a  witness  for  another,  in  a  libel  for  wages,  if  the  witness 
and  the  party  have  a  common  interest  in  the  matter  in  controver- 

1  The  Lady  Ann,  1  Edw.  Adm.  R.  235.     clincd  rather  to  believe  the  master  when 

2  U.  S.  Stat  1790,  ch.  29,  §  6,  Vol.  1,     he  has  no  interest.     The  Sw.allow,  Olcott, 
p.  133.  4  ;  Graham  v.  Iloskins,  Id.  224.] 

8  Oliveri;.  Alexander,  6  Tet.  Uf)- 147;  *  Dunl.   Adm.   Pract    p.    2.39;    Supra, 

[Ship  Kli/.aheth  v.  Hickens,  2  Paine,  C.  C.  §  414.    This,  however,  seems  to  have  been 

291.     But  their  testimony  is  received  with  deemed  ol)jeetioniil)le      I){\n\.  supra ;  The 

great  caution,  and  tiic  court  will  be  in-  Betsey,  2  Bro  Penn.  R.  350. 


TART  VII.]  OF   EVIDENCE   IN   INSTANCE   CAUSES.  371 

sy ;  as,  for  example,  where  the  question  is  as  to  the  loss  of  the 
ship,  or  an  embezzlement  equally  affecting  the  whole  crew,  or  neg- 
ligence, misfeasance,  or  malfeasance,  to  which  all  must  contribute, 
or  the  like.  But  where  their  cases  are  distinguished  by  special 
circumstances,  as  where,  notwithstanding  their  contracts  are  simi- 
lar, the  breach  or  performance  of  one  may  happen  without  affect- 
ing the  other,  one  seaman  may  be  a  witness  for  another  ;  although, 
where  they  are  involved  in  similar  breaches  of  contract,  they  are  to 
be  heard  with  caution.^ 

§  416.  Courts  of  admiralty,  also,  like  courts  of  common  law ,2 
recognize  the  admissibility  of  experts,  or  men  of  science,  to  testify 
their  opinions  upon  matters  in  controversy,  pertaining  to  the  art 
or  science  in  which  they  are  peculiarly  skilled.  Thus,  in  a  ques- 
tion of  forfeiture  for  the  illegal  importation  of  certain  hogsheads 
of  rum,  it  was  held  competent  for  the  prosecution  to  prove  the 
place  of  origin  of  the  rum  by  its  particular  flavor,  ascertained,  in 
the  absence  of  other  evidence,  by  the  taste  of  persons  skilled  in 
judging  of  the  article ;  the  sense  of  tasting  being  capable  of  ac- 
quiring, in  many  instances,  as  great  a  degree  of  accuracy  and  pre- 
cision as  the  eye.^  So,  on  questions  of  seamanship,  the  opinions 
of  nautical  men,  having  before  them  a  clear  statement  of  all  the 
facts,  are  admissible  evidence  in  courts  of  admiralty,  as  well  as 
those  of  men  of  science  on  points  of  science,  in  other  courts.* 
And  accordingly,  in  a  case  of  collision,  it  was  held,  that  a  nauti- 
cal person  was  a  competent  witness  to  say  whether,  upon  the  plain- 
tiff's evidence  and  admitting  it  to  be  true,  he  was  of  opinion  that 
by  proper  care  on  the  part  of  the  defendant's  servants  the  collision 
could  have  been  avoided.^ 

1  Thompson  w.  The  Philadelphia,  1  Pet.  v.    Jackson,   Bunb.    140;    The    Nymph, 

Adm.  210.     Whether  the  master  is  a  com-  Ware,   H.  257;    The    Hope,   2    Gall.   48. 

petent   witness  for  the  owner,  in  a  libel  Neither  is  he  competent  to  prove  that  a 

afiainst    the    ship    for   wages,    has    been  sufficient  medicine-chest  was  on  board,  for 

doubted.     The  William  Harris,  Ware,  II.  thcpurposeofthrowinsr  the  expense  ofmed- 

367.     But   see   The  Lady  Ann,  1    Edw.  ical  advice  on  the  seamen.     The  William 

Adm.  R.  23.5,  that  he  is  admissible.     He  is  Harris,  supra.    The  proper  evidence  of  rlmt 

not  admissible  to  prove  any  matter  of  de-  fact  is  the  testimony  of  a  respectable  pliy,-i- 

fence  which  originated   in"  his  own   acts,  cian,  who  has  examined  the  medicineclu  st. 

and    for  which  he  is  responsible  ;    Ibid.  ;  Ibid.     [The  admissions  of  the  master  arc 

[and  see  also  The  Boston,  1   Sumn.  343  ;  admissible  in  a  suit  for  wages  against  the 

The  Peytona,  2  Curt.   C.  C.   21.     In  the  owners.     The  Enterprise,  2   Curt.  C.   C. 

latter  case  it  was  held  that  a  release  by  317.] 

one  of  the  part-owners  of  the  ship  would  -  See  ante.  Vol.  1,  §  440. 

make  him  a  competent  witness.]    He  is  not  ^  United  States  v.  Ten  Hhds.  of  Rum, 

admissible   for   the    claimant,    in    a   libel  1  Gall.  188;  The  Rose,  Id.  211 

against  the  ship  for  forfeiture,  by  reason  *  The  Ann  &  Mary,  7Jur.  1001. 

of  an  illegal  act  doae  under  him.     Fuller  ^  Fenwick  v.  Bell,  1  C.  &  K.  312.     The 


372 


LAW   OF   EVIDENCE   IN   ADMIRALTY. 


[part  VU. 


3.   DOCUMENTS. 

§  417.  The  general  rules  of  evidence  in  courts  of  admiralty, 
respecting  the  admissibility,  proof,  and  effect  of  documents,  whether 
public  or  private,  are  the  same  with  those  which  are  recognized  in 
courts  of  common  law,  and  which  have  already  been  considered.^ 
But  in  tlie  former  courts  there  are  some  further  exceptions,  and 
some  peculiar  illustrations  and  applications  of  these  rules,  which 
will  now  be  mentioned. 

§  418.  Documents  peculiar  to  maritime  transactions  are  those 
which  concern  either  the  ownership  and  national  character  of  ships 
and  vessels,  and  the  property  on  board  ;  the  contract  for  seamen's 
wages  and  service ;  the  contract  for  the  conveyance  of  goods  by 
sea ;  and  the  log-book,  or  journal  of  occurrences  on  board  the 
ship,  relating  to  her  navigation  and  employment,  and  the  behavior 
of  the  seamen. 

§  419.  By  the  law  of  the  United  States,^  the  title  to  vessels, 
whether  by  absolute  bill  of  sale,  mortgage,  hypothecation,  or  other 
conveyance  (except  the  lien  by  bottomry  created  during  the  voy- 
age), is  not  valid  against  any  person  other  than  the  vendor,  his 
heirs  and  devisees,  or  other  persons  having  actual  notice  thereof, 
unless  the  instrument  of  conveyance  is  recorded  in  the  office  of 
the  collector  of  customs  where  the  vessel  is  enrolled  or  registered. 


previous  decision  in  Sills  v.  Brown,  9  C. 
&  P.  601,  contra  seems  to  be  regarded  as 
hasty  and  unsound.  [In  England  it  is 
usual  in  cases  of  collision  for  the  judge  to 
be  assisted  by  some  of  the  masters  of  the 
Trinity  House  as  nautical  experts,  to 
whomhe  refers  the  question  of  blame  un- 
der proper  instructions  as  to  the  law. 
Though  their  decision  is  not  binding  vnjon 
the  court,  it  is  usually  followed.  This 
practice  does  not  prevail  in  the  United 
States.  It  seems,  however,  to  be  not  unus- 
ual to  refer  the  cause  to  nautical  experts 
to  report  upon  fiicts  within  their  peculiar 
knowlcflge.  Peele  v.  Merch.  Ins.  Co.,  3 
Mass.  27,36;  The  Isaac  Newton,  1  Abb. 
Adm.  ."iSS.  Bat  in  The  Clement,  2  Curtis, 
C.  C.  363,  it  was  held  that  the  proper  course 
was  to  get  the  opinion  of  the  experts  upon 
a  hypoilictical  case] 

The  crews  of  large  ships  are  distributed 
into  classes,  according  to  their  different 
capacities;  and  thus  the  grade  of  one's 
seamanship  may  be  asccrtivined  by  the 
station  he  may  have  held.  The  classifi- 
cation is  stated  in  Van  Heythuyscn's  Ma- 
rine Evidence,  p.  9,  as  follows  :  — 


Boatswain's  mates 
Quartermasters 
Gunners  and  gun- 
ners' mates 
Forecastle-men 
Foretop-men 
Mizzentop-men 

Maintop-men 

After-guards-men 
Waisters 

Ante,  Vol.  1, 


Best  men  in  the  ship. 


Active  young  seamen. 

(  Young  lads  and  indif- 
(      ferent  seamen 

[  Landsmen,  &c. 

5§  471-498,  557-582. 
[*  Where  a  paper  has  been  intrusted  to  the 
libellant  for  the  benefit  of  both  parties,  the 
court,  on  motion  of  the  respondent,  will 
order  its  production  before  answer,  its  in- 
spection being  material,  as  where  there  is 
a  bipartite  agreement,  and  one  part  only 
is  reduced  to  writing  and  left  in  the  hands 
of  the  libellant.  But  where  there  was  a 
contract,  partly  by  parol  and  partly  by  let- 
ters, and  one  of  the  letters  addressed  to  the 
libellant  was  in  his  possession,  the  court 
refused  a  motion  by  the  respondent  for 
the  production  of  the  letter  before  answer. 
The  Voyageur  dc  la  Mer,  Sprague's 
Decisions,  372  ] 

2  United  States  Stat.  1850.  ch.  27,  §  I. 


PART  Vn.]  OF   EVIDENCE   IN   INSTANCE   CAUSES.  373 

But  though  the  hill  of  sale  is  the  proper  muniment  of  title,  and  is 
essential  to  the  complete  transfer  of  the  ownership  and  of  the  na- 
tional character  of  any  vessel,  and  in  the  ordinary  practice  in  ad- 
miralty is  always  required,  as  the  regular  commercial  instrument 
of  title,  ^  yet,  as  between  the  parties  themselves,  the  title  may  be 
sustained,  at  least  by  way  of  estoppel,  by  any  evidence  competent 
to  prove  title  to  any  other  personal  chattel,  under  similar  circum- 
stances.2  The  register  is  not,  of  itself,  evidence  of  title  in  the  per- 
son in  whose  name  it  stands,  when  offered  in  a  suit  against  him,  in 
order  to  establish  his  liability  as  owner  ;^  though  it  would  be  oth- 
erwise, if  it  were  shown  that  the  registry  in  his  name  had  been 
procured,  or  adopted  and  sanctioned  by  himself.*  Nor  is  it  evi- 
dence io. disprove  the  title  of  a  party  claiming  as  owner,  because 
his  name  is  not  found  in  it ;  for  a  legal  title  may  exist,  indepen- 
dent of  the  register.^  Whether  it  would  be  evidence  in  his  favor  is 
not  known  to  have  been  directly  decided ;  but  in  one  case,  v/here 
a  copy  of  the  register  was  rejected,  because  not  made  by  a  certify- 
ing officer,  no  question  was  raised  as  to  the  admissibility  of  the 
original,  either  by  the  learned  counsel,  or  by  the  eminent  judge 
who  delivered  the  opinion  of  the  court.^  In  collateral  issues,  such 
as  in  trover,  for  the  materials  of  a  wrecked  ship,'^  the  title  may  be 
proved,  primd  facie,  by  possession  ;^  and  in  an  indictment  for  a  re- 
volt, the  register  is  sufficient  evidence  of  title  to  sustain  that  alle- 
gation in  the  indictment.^     No  vessel,  however,  can  be  deemed  a 

1  Ante,  Vol.  1,  §  261  ;  3  Kent,  Comm.  sion  seems  to  be  stronger  evidence  of  title 
130-1.33;  Western  r.  Penniman,  1  Mason,  than  registry.  Bass  v.  Steele,  3  Wash. 
306  ;  The  Sisttrs,  .5  C.  Rob.  135  ;  Abbott  C.  C.  381,  390;  The  S.  G.  Owens,  1  Wall, 
on  Shipping,  by  Story,  pp.  1,  19,  60-66,  Jr.  366.  See,  further,  on  the  effect  of  the 
and  notes.  In  prize  courts  it  is  indispen-  register  as  evidence  of  ownership,  Myers 
sable,  in  proof  of  title.  The  San  Jose  In-  v.  Willis,  33  Eng.  Law  &  Eq.  204,  209, 
diano,  2  Gall.  284.  219;    Mitcheson    v.    Oliver,    32   Id.    219; 

2  Ibid. ;  Bixby  v.  Franklin  Ins.  Co.,  8  Mackenzie  v.  Pooley,  34  Id.  486.] 

Pick.   86;  Taggard  v.   Loring,    16   Mass.  ^  Ibid.     And   see   Lord  v.  Ferguson,  9 

336;    Vinal    i'.    Burrill,    16    Pick.    401;  N.   Hamp.  380;   Abbott  on    Shipping,   p. 

Wendover  i-.  Hogeboom,  7  Johns.  308.  60,  note  by   Story.     The  register  is  not 

^  Leonard  v.  Huntington,  1.5  Johns.  298.  necessary  to  the  proof  of  the  national  char- 

*  Sharp  V.  United  Ins.  Co.,  14  Johns,  acter  of  an  American  vessel,  even  in  an 

201  ;  Jones   i'.   Pitcher,  3    Stew.  &  Port  indictment  for  piracy.     United  States  v. 

13.5  ;  Tucker  v.  Buffington,  1.5  Mass.  477  ;  Furlong,  .5  Wheat.  184,  199. 

Diml.  Adm.  Pract.  283;  3  Kent,  Comm.  ^  Coolidge  v.   New  York  Ins.  Co.,  14 

150;   [Flower  v.  Young,  3  Campb.  240;  Johns.  308;   Abbott  on   Shipping,  p.  63, 

Hacker  v.  Young,  6  N.  H.  95.     It  is  not,  note  by  Story.     [See  Flower  v.  Young, 

however,  conclusive.     Western  v.   Penni-  supra ;  Lincoln  v.  Wright,  23  Penn.  76 ; 

man,  1  Mason,  306 ;  Leonard  v.  Hunting-  The  S.  G.  Owens,  1  Wall.  Jr.  366.] 

ton,  supra ;  Bixby    v.  Franklin    Ins.    Co.  '^  Sutton  v.  Buck,  2  Taunt.  302.     And 

supra;  Colson  v.  Bonzey,  6  Greenl.  474;  s&e  ante,  Vol.  2,  §  378. 

Lord  V.  Ferguson,  9  N.  H.  380 ;  Ring  v.  ^  Ibid. 

Franklin,  2  Hall,  1 ;  Plymouth   Cordage  ^  United    States    v.  Jenkins,   3    Kent, 

Co.  V.  Sprague,  2  Law  Rep.  365.    Posses-  Comm.  130,  n. 


374  LAW    OF   EVIDENCE   IN   ADMIRALTY.  [PAET  VU. 

vessel  of  the  United  States,  or  entitled  to  the  privileges  of  one  un- 
less she  is  registered,  and  the  owners  and  masters  are  citizens  of 
the  United  States.^  But  it  is  only  by  virtue  of  statutes  that  a  reg- 
ister becomes  necessary,  it  being  a  document  not  required  by  the 
law  of  nations  as  evidence  of  a  ship's  national  character.^  Nor  is 
the  register,  or  the  bill  of  sale,  in  any  case,  conclusive  evidence  of 
ownership.^ 

§  420.  But  to  this  general  rule,  that  the  bill  of  sale  is  indispen- 
sable to  a  valid  title  by  the  admiralty  law,  an  exception  is  allowed, 
in  cases  of  judicial  sales  by  order  of  a  court  of  admiralty,  whether 
for  wages  or  salvage,  or  upon  a  forfeiture,  or  for  payment  of  a  loan 
on  bottomry.  Whether  such  sale,  ordered  upon  a  survey  and  con- 
demnation as  a  vessel  unfit  for  service,  is  valid,  is  a  point  not  per- 
fectly settled ;  but  it  has  been  said  that  courts  of  admiralty,  feel- 
ing the  expediency  of  the  power  to  order  sales  in  such  cases,  would 
go  far  to  support  the  title  of  the  purchaser ;  and  in  this  country 
the  power  has  been  held  to  be  strictly  within  the  admiralty  juris- 
diction.* A  further  exception  is  admitted  in  cases  of  condemna- 
tion as  prize  of  war.  In  all  such  cases,  the  title  passes  to  the  pur- 
chaser or  captor  by  virtue  of  the  judicial  order  or  sentence  and 
the  proceedings  thereon,  irrespective  of  any  bill  of  sale  or  other 
documentary  evidence  of  ownership. 

§  421.  The  contract  for  the  conveyance  of  goods  by  sea  is  regu- 
larly made  by  a  charter-party  or  agreement  in  writing,  whereby 
the  whole  or  part  of  a  ship  is  leased  to  another,  for  that  purpose, 
on  payment  of  freight.  If  the  charterer  hires  the  entire  ship  for 
the  voyage,  and  has  the  exclusive  possession,  command,  and  navi- 
gation of  the  vessel,  he  takes  the  character  and  responsibilities  of  a 
general  owner ;  but  if  the  general  owner  retains  the  possession  of 
a  part  of  the  ship,  with  the  command  and  navigation,  and  con- 
tracts to  carry  a  cargo  on  freight  for  the  voyage,  the  charter-party 

1  United  States  Stat.  Dec.  31,  1792,  was  lawfully  constituted.  Ordinarily,  for- 
§§  1-.5,  Vol.  1,  pp.  287-290.  And  eign  courts,  whose  orij^in  is  unknown,  will 
see  Abbott  on  Shipping,  pp.  31  -38,  notes  be  presumed  legitimate,  until  the  contrary 
by  Story  ;  3  Kent,  Comm.  141  - 150.  is   proved;    but   if  the   court   appears    to 

2  Aule,  Vol.  1,  §  494;  Le  Cheminant  v.  have  been  constituted  by  a  different  au- 
Pearson,  4  Taunt.  367.  thority  from  what  is  usual  among  civilized 

**  Bixby  j;.  Franklin  Ins.  Co.,  8  Pick.  86;  nations,   as,   for   example,   by    a   military 

Colson  V.  Bonzey,  5  Greenl.  474 ;  Hozey  commander,  the  party  claiming  under  its 

V.  Buchanan,  16  I'eters,  215.  decree  must  show  that  thc.court  was  con- 

*  The    Tilton,    5    Mason,    465,    474  ;  3  stituted  by  competent  authority.     Smdl  v. 

Kent,   Comm.  131.     A  party  who  claims  Paus.satt,   1   Wash.  C.  C.  K.  271  ;  3  Binn. 

property  in  a  vessel,  derived  from  a  sen-  239,  n.  8.  C;  Cheriot  w.  Foussat,  3  Binn. 

tencc  of  condemnation  by  a  foreign  tribu-  220. 
nal,  is  bound  to  prove  that  the  tribunal 


PART  VII.]  OF   EVIDENCE   IN   INSTANCE   CAUSES.  375 

is  considered  a  mere  contract  of  affreightment,  sounding  in  cove- 
nant, and  the  freighter  does  not  take  the  character  or  legal  re- 
?ponsibilities  of  ownership.  But  the  contract,  in  either  case,  is 
termed  a  charter-party.^  By  the  codes  of  all  the  maritime  states 
of  Europe,  except  Great  Britain  and  Malta,  it  is  requisite  that  this 
contract  should  be  in  writing  ;  ^  and  the  same  rule  is  understood 
to  prevail  in  Mexico,  and  in  the  states  of  Central  and  South 
America,  in  which  the  Ordonanza  de  Bilbao  is  recognized  as  an 
authority.^  But  in  the  English  law,  and  that  of  the  United 
States,  the  hiring  of  ships  without  writing  is  undoubtedly  valid, 
though  disapproved  as  a  loose  and  dangerous  practice.* 

§  422.  The  proper  evidence  of  the  shipment  of  the  particular 
goods  to  be  conveyed,  pursuant  to  the  charter-party  or  contract  of 
affreightment,  is  the  hill  of  lading.  Tliis  document,  though  not 
necessary  to  the  validity  of  the  contract  by  any  express  English  or 
American  statute,  is  required  by  immemorial  maritime  usage  ; 
and  is  made  essential  by  the  codes  of  most  of  the  maritime  states 
of  continental  Europe.^  By  the  commercial  code  of  France,  it  is 
requisite  that  the  bill  of  lading  should  express  the  nature,  quanti- 
ty, and  species  or  qualities  of  the  goods,  the  name  of  the  shipper, 
tlie  name  and  address  of  the  consignee,  the  name  and  domicile  of 
tlio  captain,  the  name  and  tonnage  of  the  vessel,  the  place  of  de- 
parture and  of  destination,  the  price  of  the  freight;  and  in  the 
margin,  the  marks  and  numbers  of  the  articles  or  packages 
shipped ;  and  it  is  required  to  be  executed  in  four  originals,  one 
each  for  the  shipper,  the  consignee,  the  master,  and  the  owner. 
When  thus  drawn  up,  it  is  legal  evidence  between  all  the  parties 
interested  in  the  sliipment,  and  between  them  and  the  insurers.^ 
A  regulation  precisely  similar  in  its  terms  is  contained  in  the 
codes  of  Portugal,  Prussia,  and  Holland.'^  In  the  other  continen- 
tal states  the  substance  only  is  the  same.     And,  by  the  general 

1  Marcardier  v.   The   Chesapeake  Ins.  Codes,  &c.,  pp.  69,  70,  265,  287,  307,  333, 

Co.,  8  Cranch,  39,  40 ;  The  Volunteer,   1  366,  40.5. 

Sumn.  51,  5568  ;   Urinkwater  v.  The  Spar-  ^  Idem,  p.  70. 

tan.  Ware,  R.  156.   In  eases  of  doubt  upon  *  3  Kent,  Comm.  204. 

the  faee  of  the  charter-party,  the  general  &  St.  Joseph,  Concord,  pp.  70,  72,  74, 

owner  is  deemed  owner  for  the  voyage.  75.     Such,  by  this  author,  appears  to  be 

Certain  Logs  of  Mahogany,  2  Sumn.  589,  the  law  of  France,  Spain,  Portug.al,  Hol- 

597.     f*  Under  a  charter-party  giving  to  land,  Prussia,  l?ussia,  Hamburg,  Sweden, 

the  hirer  the  whole  capacity  of  the  ship,  Wallachia,  Sardinia,  and  the  Ionian  Isles, 

the  owner  thereof  is  not  a  common  carrier,  ^  Code  de  Commerce,  art.  281,  282,  283. 

but  a  bailee  to  transport  for  him.     Lamb  And  see  Abbott  on  Shipping,  pp.  216,  217, 

V.  Parkman,  Sprague's  Decisions,  343.]  and  notes  by  Story. 

^  St.    Joseph,    Concordance    entre    les  ^  St.  Joseph,  Concord,  pp.  72,  75. 


376  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VIL 

maritime  law,  this  document  is  the  proper  evidence  of  title  to  the 
goods  shipped  ;  if  it  be  made  to  order,  or  assigns,  it  is  transferable 
in  the  market  as  other  commercial  paper,  and  the  indorsement 
and  delivery  of  it  transfers  the  property  in  the  goods  from  the 
time  of  delivery.^ 

§  423.  Another  essential  document  is  the  shipping  articles,  or 
contract  for  the  service  and  wages  of  the  seamen.  The  statute  of 
the  United  States,  for  the  government  and  regulation  of  seamen  in 
the  merchants'  service,  requires  every  master  of  a  vessel  bound 
from  the  United  States  to  a  foreign  port,  and  every  master  of  a 
vessel  of  more  than  fifty  tons'  burden,  bound  from  a  port  in  one 
State  to  a  port  in  any  other  than  an  adjoining  State,  before  pro- 
ceeding on  the  voyage,  to  make  a  written  agreement  with  every 
seaman  on  board  his  vessel,  except  apprentices  and  servants  of  him- 
self or  the  owners,  declaring  the  voyage  or  voyages,  term  or 
terms  of  time,  for  which  such  seamen  shall  be  shipped.  And,  at 
the  foot  of  such  contract,  there  must  be  a  memorandum  of  the 
day  and  hour  on  which  each  seaman  renders  himself  on  board,  to 
begin  the  voyage  agreed  on.^  Though  these  shipping  articles  are 
signed  by  all  the  seamen,  no  one  is  understood  to  contract  jointly 
with  or  to  incur  responsibility  for  any  of  the  others  ;  but  the  docu- 
ment constitutes  a  several  contract  with  each  seaman,  to  all  in- 
tents and  purposes.^  It  is  part  of  the  necessary  documents  of  the 
ship  for  the  voyage,  and  is  primd  facie  evidence  in  respect  to  all 
persons  named  therein.  It  is  presumed  to  import  verity  until  im- 
peached by  proof  of  fraud,  mistake,  or  interpolation ;  and  is  in  no 
just  sense  the  private  paper  of  the  master,  but  is  properly  the 
document  of  the  owner,  as  well  as  of  the  other  parties,  to  which 
he  must  be  presumed  to  have  access,  and  of  the  contents  of  which 
he  cannot  ordinarily  be  supposed  to  be  ignorant.*  If  it  contains 
any  agreement  with  the  seaman  contrary  to  the  general  maritime 
law,  or  to  the  policy  of  a  statute,  as,  for  example,  that  the  seaman 
shall  pay  for  medical  advice  and  medicines,  without  any  condition 
that  the  ship  shall  be  provided  with  a  suitable  medicine-clicst ; 
or,  that  the  wages  shall  cease  in  case  of  capture,  or  during  the 
restraint  of  the  ship ;  the  stipulation  will  not  be  allowed  to  stand, 
unless  an  additional  compensation  be  given  to  tlie  seaman,  entire- 

1  3  Kent,  Comm.  207;  Abbott  on  Ship-         ^  Oliver  v.  Alexander,  6  Pet.  145. 
ping,  p.  389,  Story's  ed.  *  Willard  v.  Dorr,  3  Mason,  Ifal. 

2  U.  S.  Stat.  1790,  eh.  29,  §§  1,  2,  Vol 
l,p.  131. 


PART  vn.] 


OF   EVIDENCE   IN   INSTANCE   CAUSES. 


377 


ly  adequate  to  the  new  burdens,  restrictions,  or  risks  imposed  upon 
him  thereby,  or  the  nature  and  operation  of  the  clause  be  fully 
and  fairly  explained  to  him.^  This  document  must  explicitly  de- 
clare the  ports  at  which  the  voyage  is  to  commence  and  termi- 
nate.^ Parol  evidence  cannot  be  admitted  to  vary  the  contract,  as 
to  the  amount  of  wages ;  ^  but  if  the  amount  is  omitted  by  mis- 
take or  accident,  and  without  fraud,  either  party  may  be  permit- 
ted to  show,  by  parol  testimony,  what  was  the  amount  of  wages 
actually  agreed  upon  between  them.*  And  the  seaman  also  may 
show,  by  parol  evidence,  that  the  voyage  was  falsely  described  to 
him  at  the  time  of  signing  the  articles ;  ^  or,  that  they  had  been 
fraudulently  altered  by  the  master,  since  he  had  signed  them.^ 
But  parol  evidence  is  not  admissible  on  the  part  of  the  seaman,  to 
prove  an  agreement  for  any  additional  benefit  or  privilege,  as  part 
of  his  wages,  beyond  the  amount  specified  in  the  shipping  arti- 
cles.'' 

§  424.  Though  the  statute  above  cited  contains  no  express  dec- 
laration respecting  the  effect  of  the  shipping  articles  as  evidence 
of  the  contract,  similar  to  the  English  statute  on  that  subject,^  yet 


1  Harden  v.  Gordon,  2  Mason,  541  ; 
Brown  v.  Lull,  2  Suran.  443,  450;  The 
Juliana,  2  Dods.  504  ;  3  Kent,  Comm. 
184.  And  see  Mr.  Curtis's  valuable  Trea- 
tise on  the  Rights  and  Duties  of  Merchant 
Seamen,  pp.  54-58;  Flanders  on  Ship- 
ping, p.  74. 

2  Magee  v.  Moss,  Gilp.  219. 

3  Veaeock  ;;.  McCall,  Gilp.  305. 

*  Wickham  v.  Blight,  Gilp.  452;  The 
Harvey,  2  Hagg.  Adm.  R.  79. 

*  Murray  v.  Kellogtr,  9  Johns.  227 ; 
[Patre  v.  Sheffield,  2  Curtis,  C.  C.  377  ; 
Snow  V.  Wope,  Id.  301 .]  [*  Where  the 
shipping  articles  were  in  the  usual  printed 
form  for  whaling  voyages,  wiih  an  addi- 
tional clause  in  writing  containing  novel 
provisions  as  to  the  mode  of  computing 
the  shares  of  the  seamen,  it  was  held  that 
the  seaman  was  not  bound  by  such  new 
provisions,  they  not  having  been  made 
known  to  him  at  the  time  of  shipment. 
Mayshew  v.  Terry,  Sprague's  Decisions, 
584.] 

6  The  Eliza,  1  Hagg.  Adm.  182. 

T  The  Isabella,  2  C.  Rob.  24 1  ;  Veacock 
V.  McCall,  Gilp.  305.  The  contrary 
seems,  at  first  view,  to  have  been  held  by 
Judge  Peters,  in  Parker  v.  The  Calliope,  2 
Pet.  Adm.  R.  272  ;  but  it  is  to  be  observed 
that  in  that  case,  which  was  a  libel  by  the 
cook  for  wages,  the  owner  claimed  an  al- 
lowance for  the  value  of  the  ship's  slush, 


which  the  cook  had  sold  and  appropriated 
to  his  own  use ;  'and  the  parol  evidence 
admitted  by  the  judge  went  to  show  that 
the  slush  was  given  to  the  cook,  as  an  ad- 
mitted perquisite  of  his  place ;  the  evi- 
dence being  admitted  to  repel  the  demand 
of  the  owner,  as  being  unjust,  and  not  to 
support  an  original  claim  against  him. 
[In  a  suit  for  wages,  if  the  shipping  arti- 
cles are  not  produced  at  the  trial  upon  due 
requirement  by  the  seaman,  his  statement 
of  their  contents  will  l)e  prima  facie  evi- 
dence thereof  Stat.  Julv  20,  1790,  §  6 ; 
The  Osceola,  Olcott,  450.] 

8  By  Stat.  2  Geo.  2,  c.  36,  it  was  pro- 
vided that  the  agreement,  "  after  the  sign- 
ing thereof,  sliall  be  conclusive  and  bind- 
ing to  all  parties."  The  Isabella,  2  C. 
Rob.  241.  These  words  are  regarded  as 
applicable  only  to  the  amount  of  wages, 
and  the  voyage  to  be  performed,  and  not 
to  articles  in  which  the  rate  of  wages  is 
not  specified,  nor  to  other  stipulations  of  a 
special  nature;  the  court  of  admiralty 
deeming  itself  at  liberty,  on  collateral 
points,  to  consider  how  far  they  are  just 
and  reasonable.  The  Prince  "Frederick, 
2  Hagg.  Adm.  394;  The  Harvev,  Id.  79  ; 
The  Minerva,  1  Hagg.  Adm.  374.  The 
English  statutes  relative  to  seamen  in  the 
merchants'  service  have  been  revised,  im- 
proved, and  consolidated  by  Stat.  5  &  6 
W.  4,  c.  19. 


378  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VIL 

they  have  been  held  to  be  the  only  primary  legal  evidence  of  the 
contract,  on  the  general  principle  of  the  law  of  evidence  ;  ^  although 
the  charges  made  on  them,  of  advances  to  the  seamen  in  the 
course  of  the  voyage  are  not  sufficient  evidence  of  such  payments, 
\intil  verified  by  the  suppletory  oath  of  the  master.^     But  by  a 
subsequent  statute,  respecting  the  discharge  of  seamen  in  foreign 
ports,3  it  is,  among  other  things,  required  that  the  ship  be  fur- 
nished with  a  duplicate  list  of  the  crew  and  a  certified  copy,  from 
the  collector  of  the  customs  in  the  place  of  clearance,  of  the  ship- 
ping articles,  and  that  "  these  documents,  which  shall  he  deemed  to 
contain  all  the  conditions  of  contract  with  the  crew,  as  to  their  ser- 
vice, pay,  voyage,  and  all  other  things,''  shall  be  produced  by  the 
master,  and  laid  before  any  consul  or  commercial  agent  of  the 
United  States,  whenever  there  may  be  occasion  for  the  exercise  of 
his  duties  under  that  statute.     Such  being  the  effect  given  by  the 
statute  to  these  certified  copies  in  the  cases  therein  provided  for, 
it  is  not  unreasonable  to  infer  that  the  originals  were  understood 
and  intended  to  have  the  same  effect  in  all  cases.     And  this  infer- 
ence is  supported  by  another  provision,  in  the  previous  statute,^ 
that  in  any  suit  for  wages,  it  shall  be  incumbent  on  the  master  or 
commander  to  produce  the  contract  and  log-book,  if  required,  to 
ascertain  any  matters  in  dispute  ;  otherwise,  the  complainant  shall 
be  permitted  to  state  the  contents  thereof,  and  the  proof  to  the 
contrary  shall  lie  on  the  master  or  commander. 

§  425.  In  the  fisheries,  also,  the  contract  of  the  seamen  with 
the  master  and  owner  is,  by  statute,  required  to  be  in  writing,  in 
all  cases  where  the  vessel  is  of  the  burden  of  twenty  tons  and  up- 
wards. The  writing,  in  addition  to  such  terms  of  shipment  as 
may  be  agreed  on,  must  express  whether  the  agreement  is  to  con- 
tinue for  one  voyage  or  for  the  fishing  season,  and  that  the  fish 
or  their  proceeds,  which  may  appertain  to  the  fishermen,  shall  be 
divided  among  them  in  proportion  to  the  fish  they  respectively 
may  have  caught.  It  must  also  be  indorsed  or  countersigned  by 
the  owner  of  the  vessel  or  his  agent.^  This  statute  was  not  in- 
tended to  abridge  the  remedy  of  the  seamen,  by  the  common  ma- 
rine law,  against  all  who  were  owners  of  the  vessel  for  the  voyage ; 

1  Bartlctt  V.  Wynian,  14  Johns.  2f)0 ;  *  U.  S.  Stat.  1790,  ch.  29,  §  6,  Vol.  1, 
Johnson  r.  Dalton,"  1  Cowcn,  .543,  .549.  p.  134 

2  The  David  Pratt,  Ware,  li.  496.  ^  U.  S.  Stat.  1813,  ch.  2,  §  1,  Vol.  3,  p. 
8  U.  S.  Stat.  1840,  ch.  48,  §  1,  Vol.  r,,     2. 

p.  395. 


PART  VII.]  OF   EVIDENCE   IN   INSTANCE   CAUSES.  379 

and  therefore  it  has  been  held,  that  where  the  articles  are  not 
indorsed  or  countersigned  by  all  the  owners,  the  seanaan,  in  a  suit 
for  his  share  of  the  proceeds  of  the  fish,  may  show,  by  the  license, 
and  by  parol  evidence,  who  were  the  real  owners  of  the  vessel, 
and,  as  such,  responsible  for  the  proceeds.^  In  the  whale  fishery^ 
which  is  held  not  to  be  a  "  foreign  voyage,"  within  the  meaning 
of  the  statutes  using  that  expression,  no  statute  has  yet  expressly 
required  that  the  contract  should  be  in  writing ;  but  the  nature 
and  usage  of  that  trade  have  led  to  the  universal  adoption  of  a 
written  agreement.^ 

§  426.  If  the  shipping  articles  are  lost,  the  role  d'equipage  is 
competent  evidence  of  the  shipment  of  the  seamen,  and  of  the 
contract  made  in  relation  to  wages.^  For  though  the  articles  are 
held  to  be  the  only  legal  evidence  of  the  contract,  in  cases  where 
by  law  they  are  required  and  have  been  executed ;  yet  this  does 
not  exclude  any  competent  secondary  evidence,  where  the  original 
is  not  to  be  had.  If,  after  the  voyage  is  partly  performed,  the 
seamen,  at  an  intermediate  port,  compel  the  master  to  enter  into 
new  articles  at  a  higher  rate  of  wages,  under  threats  of  desertion 
in  case  of  his  refusal,  the  new  articles  are  void,  as  being  contrary 
to  the  policy  of  the  statute,  and  tending  to  sanction  a  violation  of 
duty  and  of  contract ;  and  the  original  articles  remain  in  force.* 
Nor  is  the  original  contract  with  the  seamen  impaired  or  affected 
by  the  death,  removal,  or  resignation  of  the  master,  after  its  ex- 
ecution.^ 

§  427.  It  may  be  added,  that  in  the  interpretation  of  this  con- 
tract, as  well  as  of  all  other  agreements  made  between  seamen 
and  ship-owners  or  masters,  courts  of  admiralty  will  take  into 
consideration  the  disparity  of  intelligence  and  of  position  between 
the  contracting  parties,  and  will  be  vigilant  to  afford  protection  to 
the  seaman  ;  giving  him  the  benefit  of  any  doubt  arising  upon  the 
contract.^  They  are  said  to  be  the  "  wards  of  the  admiralty" 
"  inopes  concilii"  "  placed  particularly  under  its  protection,"  in 
whose  favor  the  law  "  greatly  leans  "  ;  and  who  are  "  to  be  treated 
in  the  same  manner  as  courts  of  equity  are  accustomed  to  treat 

1  Wait  V.  Gibbs,  4  Pick.  298.  U.  States  v.  Hamilton,  1   Mason,  433  ;  U. 

2  Curtis  on  Merchant  Seamen,  p.  60.  States  v.  Haines,  5  Mason,  272. 

3  The  Ketland  v.  Leberin;;,  2  Wash.  C.  ^  The  Minerva,  1  Hagg.  Adm.  355  ; 
C.R.  201.                               '  The  Hoghton,  3  Hagg.  Adm.  112  ;  The 

*  Bartlctt  V.  Wyman,  14  Johns.  260.  Ada,  Daveis,  R.  407. 

^  U.    States   u.  Cassidy,  2  Sumn.  582  ; 


380  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  Vn. 

young  heirs,  dealing  with  their  expectancies,  wards  with  their 
guardians,  and  cestuis  que  trust  with  their  trustees."  ^  Hence  an 
acquittance  or  a  general  release  under  seal,  executed  by  a  seaman 
on  the  payment  of  his  wages,  does  not,  in  admiralty,  operate  as  an 
estoppel,  but  is  treated  only  as  a  common  receipt,  and  as  primd 
facie  evidence  of  what  it  expresses,  open  to  any  explanatory  or 
opposing  proof  which  would  be  received  in  a  court  of  equity .^ 

§  428.  Another  document,  universally  found  on  board  merchant 
vessels,  and  recognized  in  courts  of  admiralty,  is  the  log-hook,  or 
journal  of  the  voyage,  and  of  transactions  on  shipboard  from  day 
to  day.  It  is  kept  by  the  master  or  mate,  but  usually  by  the  lat- 
ter ;  and  is  of  the  highest  importance  in  questions  of  prize,  of  aver- 
age, and  of  seamen's  wages,  as  well  as  in  other  particulars.^  It  is 
evidence  in  respect  to  facts  relating  to  the  business  of  lading,  un- 
lading, and  navigating  the  ship,  the  course,  progress,  and  incidents 
of  the  voyage,  the  transactions  on  shipboard  touching  those  sub- 
jects, and  the  employment  and  conduct  of  the  crew,  but  matters 
totally  foreign  from  these  in  their  character  ought  not  to  be  entered 
in  the  log-book  ;  and,  though  entered  there,  must  be  proved  by 
other  evidence.  In  respect  to  the  general  estimation  in  which  it  is 
held  in  courts  of  admiralty,  it  was  observed  by  Lord  Stowell,  that 
the  evidence  of  the  log-book  is  to  be  received  with  jealousy,  where 
it  makes  for  the  parties,  as  it  may  have  been  manufactured  for  the 
purpose  ;  but  it  is  evidence  of  the  most  authentic  kind  against  the 
parties,  because  they  cannot  be  supposed  to  have  given  a  false  rep- 

1  Ibid.     The  Madonna  d'Idra,  1  Dods.  Hence  it  is,  that  bargains  between  them 

39  ;  The  Elizabeth,  2  Dods.  407  ;  Harden  and  ship-owners,  the  latter  being  persons 

r.  Gordon,  2  Mason,  556  ;  3  Kent,  Coinm.  of  great  intelligence   and   shrewdness    in 

176;  Ware,   11.   369;  Brown   v.    Lull,   2  business,  are  deemed  open  to  much  obser- 

Sunin.  441.     In  this  last  case.  Story,  J.,  vation  and  scrutiny,  for  they  involve  great 

observed,  that  •'  courts  of    admiralty   are  inequality  of  knowledge,   of  forecast,    of 

in  the  habit  of  watching  with   scrupulous  power,  and  of  condition.     Courts    ot   ad- 

icalousy  every  deviation  from  these  princi-  miralty  on  this  account  are  accustomed  to 

pics    in    the    articles,  as    injurious    to  the  consider  seamen  as  peculiarly  entitled  to 

rights   of  seamen,  and   founded  in  an  un-  their  protection;  so  that  they  have  been, 

cmiscionahle  inequality  of  lienetits  between  by  a  somewhat  bold   figure,  often  said  to 

the  parties.     Seamen  are  a  class  of  persons  be    favorites  of    courts   of  admiralty.     In 

remarkable  for  their  rashness,  thoughtless-  a  just  sense  they  are  so,  so  far  as  the  niain- 

ness,  and  improvidence.     They  are  gcner-  tenanee  of  their  rights  and  the  protection 

ally    necessitous,    ignorant   of  the    nature  of  their  interests  against  the  effects  of  the 

and  extent  of  their  own  rights  and  privi-  superior  skill   and   shrewdness  of  masters 

leges,  and  for  the  most  part  incai)able  of  and   owners  of  ships  are  concerned."     2 

duly  appreciating  their  value.     They  com-  Sumn.  449. 

bine,  in   a  singular  manner,  the  apparent  -  The   David  Pratt,  Ware,  TJ.  495,  500, 
anomalies  of  gallantry,  extravagance,  pro-  501  ;   Harden    r.    Gordon,  2  Mason,    561, 
fusion  in   exiicnditurc,  iiidilference   to  the  562;  Thomas  r.  Lane,  2  Sumn.  ^11  ;  Jack- 
future,  credulity,  wliicli  is  easily  won,  and  son  v.  White,  1  Pet.  Adm.  11.  J79. 
confidence,    which    is    readily    surprised.  ^  jacobscn's  Sea  Laws,  pp.  77,  91. 


PART  VII.]  OF   EVIDENCE   IN   INSTANCE   CAUSES.  381 

reseiitation  with  a  view  to  prejudice  themselves.  The  witnesses, 
when  they  speak  to  a  fact  may  perhaps  be  aware,  that  it  has  be- 
come a  case  of  consequence,  and  may  qualify  their  account  of  past 
events  so  as  to  give  a  colored  effect  to  it.  But  the  journal  is  writ- 
ten beforehand,  and  by  persons,  perhaps,  unacquainted  with  any 
intention  of  fraud  ;  and  may  therefore  securely  be  relied  on  wher- 
ever it  speaks  to  the  prejudice  of  its  authors.^  The  log-book,  there- 
fore, is  primd  facie,  evidence  of  the  truth  of  all  matters  properly 
entered  therein,  in  every  particular  so  entered  ;  and  to  be  falsi- 
fied, it  must  be  disproved  by  satisfactory  evidence .^  When  offered 
in  evidence,  it  must,  of  course,  be  accompanied  by  proof  of  its 
genuineness  and  identity.^  Alterations  and  erasures,  apparent  on 
its  face,  do  not  necessarily  preclude  its  admissibility  in  evidence 
for  any  purpose,  but  go  in  a  greater  or  less  degree  to  impair  its 
value  and  weight  as  an.  instrument  of  evidence  ;  and  in  some  cases 
may  cause  it  to  be  rejected.* 

§  429.  For  certain  purposes,  proof  by  the  log-book  is  made  in- 
dispensably necessary,  by  the  statute  for  the  government  and  reg- 
ulation of  seamen  in  the  merchants'  service.  By  this  statute,^  it 
is  enacted,  that  if  any  seaman  shall  absent  himself  from  the  vessel 
without  leave,  and  the  fact  shall  be  entered  in  the  log-book  on  the 
same  day,  and  he  shall  return  to  his  duty  within  forty-eight  hours, 
he  shall  forfeit  only  three  days'  pay  for  each  day  of  absence  ;  but  if 
he  shall  not  return  within  the  forty-eight  hours,  he  shall  forfeit  all 
the  wages  due  to  him,  and  all  his  effects  on  board  the  vessel  or 

1  The  Eleanor,  1  Edw.  Adm.  163.  absent  himself,  and  if  such  seaman  or 
And  see  L'Etoile,  2  Dods.  113.  It  has  mariner  shall  return  to  his  duty  within 
been  said,  that  the  log-booli  of  the  party  forty-eight  hours,  such  seaman  or  mariner 
suing  can  never  be  made  evidence  in  his  shall  forfeit  three  days'  pay  for  every  day- 
favor,  under  any  shape.  The  Sociedade  which  he  shall  so  absent  himself,  to  be  de- 
Feliz,  1  W.  Rob.  311.  ducted  out  of  his  wages  ;  but  if  any  sea- 
■^  Douglass  V.  Eyre,  Gilp.  147.  man  or  mariner  shall  absent  himself  for 
3  U.  States  V.  Mitchell,  2  Wash.  C.  C.  more  than  forty-eight  hours  at  one  time, 
R.  478  ;  3  Wash.  C.  C.  R.  95 ;  Dunl.  he  shall  forfeit  all  the  wages  due  to  him, 
Adm.  Pr.  268.  and  all  his  goods  and  chattels  which  were 
*  Madder  v.  Reed,  Dunl.  Adm.  Pr.  251.  on  board  the  said  ship  or  vessel,  or  in  any 
5  U.  S.  Stat.  1790,  ch.  29,  §  5,  Vol.  1,  store  where  they  may  have  been  lodged  at 
p.  133.  The  enactment  is  in  these  words  :  the  time  of  his  desertion,  to  the  use  of  the 
"  that  if  any  seaman  or  mariner,  who  shall  owners  of  the  ship  or  vessel,  and  more- 
have  subscribed  such  contract  as  is  herein-  over  shall  be  liable  to  pay  to  him  or  them, 
before  described,  shall  absent  himself  trom  all  damages  which  he  or  they  may  sustain 
on  board  the  sliip  or  vessel  in  wliich  he  by  being  obliged  to  hire  other  seamen  or 
shall  so  have  shipped,  without  leave  of  the  mariners  in  his  or  their  place ;  and  such 
master  or  officer  commanding  on  board ;  damages  shall  be  recovered  with  costs,  in 
and  the  mate  or  other  officer  having  charge  any  court,  or  before  any  justice  or  justi- 
of  the  log-book,  shall  make  an  entry  ces,  having  jurisdiction  of  the  recovery  of 
therein  of  the  name  of  such  seaman  or  debts  to  the  value  of  ten  dollars,  or  up- 
mariner,  on  the  day  on  which  he  will  so  wards." 


382  LAW    OF   EVIDENCE   IN    ADMIRALTY.  [PART  VII 

stored  on  shore  at  the  time,  and  be  further  liable  to  respond  in 
damages  to  the  owner.  The  effect  of  this  has  been  to  engraft  a 
new  rule  upon  the  general  maritime  law.  By  that  law,  desertion 
of  the  ship,  during  the  voyage,  animo  non  revertendi,  and  with- 
out sufficient  cause,  connected  with  a  continued  abandonment, 
w^orks  a  forfeiture  of  wages.  Mere  absence  without  leave,  but 
with  an  intention  of  returning,  or  without  such  intent,  if  followed 
by  seasonable  repentance  and  a  return  to  duty,  is  not  followed  by 
the  highly  penal  consequence  of  such  a  forfeiture.  But  the  legis- 
lature, considering  that  a  longer  absence  might  endanger  the  safe- 
ty of  the  ship  or  the  due  progress  of  the  voyage,  has  made  forty- 
eight  hours'  absence  without  leave  conclusive  evidence  of  desertion, 
whereas  upon  the  common  principles  of  the  maritime  law,  it  would 
be  merely  presumptive  evidence  of  it.  The  fact  of  absence  without 
leave  must,  however,  be  entered  on  the  log-book  on  the  very  day 
of  its  occurrence,  as  an  indispensable  prereqiiisite  to  this  statute 
forfeiture ;  and  hence  the  log-book  becomes  the  indispensable  and 
only  competent  evidence  of  the  fact.^  It  is  not  sufficient  merely  to 
state  that  the  seaman  was  absent,  or,  that  he  left  the  ship  ;  it  must 
also  be  stated  that  it  was  without  leave,  with  the  entry  of  his  name? 

§  430.  But  though  the  log-book  is  thus  made  indispensable  to 
the  proof  of  a  statute  forfeiture  of  wages,  it  is  not  incontrovertible  ; 
but  the  charge  of  desertion  may  be  repelled  by  proof  of  the  falsity 
of  the  entry,  or,  that  it  was  made  by  mistake.^ 

§  431.  In  order  to  admit  the  log-book  in  evidence,  it  ought  reg- 
ularly to  be  pleaded  in  the  answer.  But  this  rule  does  not  seem 
to  be  always  strictly  enforced.  In  a  suit  for  wages,  a  log-book, 
brought  into  court  by  the  owners,  not  pleaded,  but  asserted  to  be 
in  the  handwriting  of  the  mate,  who  was  the  libellant,  was  permit- 
ted to  be  adverted  to,  though  resisted  by  the  other  party.*  Tlie 
affidavit  of  the  master,  in  explanation  of  the  log-book,  accompanied 
by  a  letter  written  by  him  recenti  facto,  has  been  received.^     But 

1  Clontman   v.  Tunison,   I    Sumn.  373,  2  Abbott  on    Shippinjr,  p.  468,  note  by 

380;  The    Rovcna,    Ware,    R.    309,    312,  Story;  Curtis   on   Mca-hant   Seamen,  pp. 

313;    Spencer   v.    Eustis,    8    ShepL    519.  54,  134- 136  ;  The  Rovcna,  Ware,  R.  309, 

And   see  Coffin   v.  Jenkins,  3    Story,   R.  314. 

108;    Wood    c.    Tlie   Nimrod,    Gilp!    83;  »  Orne  v.  Townscnd.    4- Mason,   541; 

Snell    V.    The    Independence,    Id.     140;  Malone  r.  The  Mary,  1  Pet.  Adm.  R.  139 ; 

Knagg  V.    Goldsmith,    Id.    207.     By    the  Jones  v.  The  Rhcenix,  Id.  201  ,  Thompson 

Stat.   7   &  8  Vict.  c.    1 12,  §  7,  it  is  iiicum-  f.    Tlie    Piiihidelphia,    LI.    210;    (*  The 

bent  on  the  owner  or  master,  in  such  cases,  Hercules,  Sprague's  Decisions,  534.1 

tocstablisli  tlie  trutli   of  the  entry  in  the  *  The  Malta,  2  Ilagg.  158,  n. 

log-book,  by  the  evidence  of  the  mate,  or  ^  L'Etoile,  2  Dods.  114. 
other  credible  witness. 


PART  VII.]  OF  EVIDENCE  IN  INSTANCE   CAUSES.  383 

letters  written  by  the  master  to  his  owners  immediately  after  a  sea- 
man had  left  the  ship,  informing  them  of  his  desertion,  are  inad- 
missible as  evidence  of  that  fact ;  ^  nor  will  an  extract  from  a 
police  record  abroad  he  received  in  proof  of  a  mariner's  miscon- 
duct.2 

§  432.  There  are  other  documents,  admissible  in  courts  of  admi- 
ralty as  evidence  in  maritime  cases,  which  are  required  by  the 
laws  of  particular  nations,  or  by  treaties,  the  consideration  of 
which  belongs  rather  to  the  general  law  of  shipping  than  to  the 
law  of  evidence.  Among  tliese  may  be  mentioned  the  Sea  Letter, 
which  declares  the  nationality  of  the  ownership,  and  commends 
the  vessel  to  the  comity  of  nations ;  the  Mediterranean  Passport, 
required  by  treaties  with  the  Barbary  powers,  and  intended  for 
protection  against  their  cruisers  ;  the  Certificate  of  Property ;  the 
Crew-List,  Muster-Roll,  or.  Role  d' Equipage,  for  the  protection  of 
the  crew  in  the  course  of  the  voyage  during  a  war  abroad  ;  ^  the 
Inventory  of  the  ship's  tackle,  furniture,  &c.,  and  of  the  several 
ship's  papers  relative  to  the  voyage,  for  proof  against  captors,  both 
of  the  dismantling  of  the  vessel,  and  of  the  destruction  or  suppres- 
sion of  her  docnments  ;  and  the  Manifest,  Invoices,  Certificates  of 
Origin,  and  other  documentary  proofs  of  the  character  of  the 
cargo.* 

4.    DEPOSITIONS. 

§  433.  The  testimony  of  witnesses  in  civil  causes  of  admiralty 
jurisdiction  in  the  courts  of  the  United  States  is  ordinarily  re- 
ceived vivd  voce,  in  summary  causes,  such  as  those  for  seamen's 
wages,  and  the  like  ;  but  in  those  of  a  graver  character,  especially 
if  expected  to  be  carried  to  the  supreme  court,  the  evidence  is 
usually  taken  in  depositions,  under  a  commission.  The  mode  of 
taking  depositions,  having  been  stated  with  sufficient  particularity 
in  a  preceding  volume,^  will  not  here  be  repeated.  It  should, 
however,  be  observed,  that  there  is  a  clear  distinction  between  dep- 
ositions taken  under  a  dedimus  potestatem,  and  those  taken  de  bene 
esse,  under  the  Judiciary  Act  of  Congress.^  The  provision  made 
in  that  statute  for  taking  depositions  de  bene  esse,  without  the  for- 

1  The  Jupiter,  2  Hagg.  221.  Code  of  France,  art.  226  ;  Aniould  on  In- 

2  The  Vibilia,  2  Hagg.  228,  n.  surance,  623-625. 

8  U.   S.    Treasury   Circular,   Feb.    2.5,  °  Ante,  Vol.  I,  %^  S20- 325. 

181.5.  6  u.  s.  Stat.  1789,  ch.  20,  §  30;  Vol.  1, 

*  See  Jacobsen's  Sea  Laws,  Book  I.  ch.  p.  88,  Stat.  1793,  ch.  22,  §  6  ;  Vol.    1,  p. 

iv.   v.:   Book  III.   ch.   iv. ;    Commercial  33.5;  ^«te,  Vol.  1,  §  322. 


384  LAW    OF   EVIDENCE   IN   ADMRALTY.  [PAET  VH. 

mality  or  delay  of  a  commission,  is  restricted  to  the  cases  there 
enumerated,  namely,  when  the  witness  resides  more  than  one  hun- 
dred miles  from  the  place  of  trial,  or  is  bound  on  a  voyage  to  sea, 
or  is  about  to  go  out  of  the  United  States,  or  out  of  the  district 
and  more  than  the  above  distance  from  the  place,  and  before  the 
time  of  trial,  or  is  ancient  or  very  infirm.  But  whenever  a  co7n- 
missmi  issues  "  to  take  depositions  according  to  common  usage, 
when  it  may  be  necessary  to  prevent  a  failure  or  delay  of  justice," 
whether  the  Avitness  resides  beyond  the  process  of  the  court  or 
within  it,  the  depositions  are  under  no  circumstances  to  be  consid- 
ered as  taken  de  bene  esse,  but  are  absolute.^  The  statute  provi- 
sion above  mentioned  does  not  apply  to  cases  pending  in  the  su- 
preme court,  but  only  to  cases  in  the  district  and  circuit  courts. 
Depositions  can  be  regularly  taken  for  the  supreme  court  only 
under  a  commission  issued  according  to  its  own  rules.^  Under 
the  statute,  it  has  also  been  held,  that  the  circumstance  that  the 
witness  was  a  seaman  in  the  naval  service  of  the  United  States,  and 
liable  to  be  ordered  on  a  distant  service,  was  not  a  sufficient  cause 
for  taking  his  deposition  de  bene  esse ;  and  therefore  his  deposition 
was  rejected.  But  it  was  observed,  that  in  such  a  case  there 
would  seem  to  be  a  propriety  in  applying  to  the  court  for  its  aid.^ 

§  434.  Objections  to  the  competency  of  a  deponent  should  be  made 
at  the  time  of  taking  his  deposition,  when  it  is  taken  under  the 
statute,  in  order  that  the  party  may  have  opportunity  to  remove 
them  if  possible.  But  if  the  ground  of  objection  was  not  previous- 
ly known,  either  actually  or  by  constructive  notice,  the  objection 
may  be  made  at  the  hearing.*  And  when  the  party,  against  whom 
a  deposition  is  taken,  expressly  waives  all  objection  to  it,  this  gen- 
eral waiver  must  be  understood  as  extending  to  the  deposition  only 
in  the  character  in  which  it  was  taken,  and  not  as  imparting  to  it 
any  new  or  different  character,  as  an  instrument  of  evidence. 
Thus,  where  a  deposition  is  taken  de  bene  esse,  and  the  adverse  par- 
ty waives  all  objection  to  it,  it  is  still  only  a  deposition  de  bene  esse, 
and  docs  not,  by  the  waiver,  become  a  deposition  in  chief.^ 

§  435.  The  general  rules  for  the  conduct  of  commissioners,  par- 
ties, and  counsel,  in  taking  depositions,  are  substantially  the  same 
in  admiralty  as  in  equity.     But  from  the  peculiar  character  of  the 

1  Sergeant  v.  Bitldle,  4  Wheat.  508.  *  United  States  v.  Hair  Pencils,  1  Paine, 

2  The  Argo,  2  Wheat.  287.  400. 

8  The  Samuel,  1  Wheat.  9.  ^  The  Thomas  &  Henry,  1  Brock.  367. 


PART  VII.]  OF  EVIDENCE  IN  INSTANCE   CAUSES.  385 

subjects  of  jurisdiction,  and  of  the  persons  and  employments  of  the 
parties  and  witnesses,  and  upon  the  constant  necessity  of  resorting 
to  foreign  countries  for  proof,  courts  of  admiralty  are  constrained, 
for  the  promotion  of  justice,  to  administer  those  rules  of  evidence 
which  are  not  prescribed  by  statutes  with  less  strictness  than  is 
observed  in  other  tribunals.  This  is  illustrated  in  its  frequent  re- 
sort to  letters  rogatory,  instead  of  a  commission,  especially  where 
the  foreign  government  refuses  to  suffer  a  commission  to  be  exe- 
cuted within  its  jurisdiction,  and  deputes  persons,  appointed  by  it- 
self, to  take  the  depositions.  In  such  cases,  especially,  it  will  suffice 
if  the  testimony  sought  is  substantially  obtained  from  the  witness, 
as  far  as  he  is  able  to  testify,  though  all  the  interrogatories  are  not 
formally  answered.  Indeed,  it  is  said  that,  wherever  tlie  business 
is  taken  out  of  the  hands  of  the  court,  the  ends  of  justice  seem  to 
require  a  departure,  in  some  degree,  from  the  ordinary  rules  of 
evidence  ;  though  the  extent  to  which  this  departure  should  go  has 
not  yet  been  precisely  determined.^  So,  where  an  order  of  the 
court  has  been  made,  pursuant  to  an  agreement  of  the  parties, 
that  the  commission  for  taking  testimony  should  be  closed  within  a 
limited  time;  the  court,  nevertheless,  in  its  discretion,  will  en- 
large the  time,  upon  the  proof  of  newly  discovered  and  material 
evidence,  coming  to  the  knowledge  of  the  party  after  the  execution 
of  the  commission. 2 

§  436.  In  regard  to  affidavits,  it  may  be  here  observed,  that  in 
instance  causes  they  are  seldom  of  use,  except  in  some  cases  of 
salvage,^  and  in  matters  relating  to  the  progress  of  the  cause. 
But  whenever  they  are  taken,  the  person  preparing  the  affidavit 
ought  not  to  make  out  the  statements  of  fact  in  language  contrary  to 
the  natural  tone  in  which  the  witness  or  party,  if  unassisted,  would 
express  himself;  but  should  state  all  the  facts  and  circumstances 
as  the  affiant  would  himself  state  them  if  examined  in  court.*  As 
to  their  admissibility  in  chief,  it  has  been  held  that  the  court  will 
not  receive,  on  the  mere  affidavit  of  the  defendant,  facts  which 
would  be  a  bar  to  the  action ;  °  nor  will  it,  upon  mere  voluntary 
affidavits,  decide  upon  charges  strongly  partaking  of  a  criminal  na- 

1  Nelson  v.  United  States,  1  Pet.  C.  C.     for  the  salvors  examined  first  to  release 
R.  237.  their  interest.     Dunl.  Adm.  Pr.  26.5,  cites 

2  The  Ruby,  .5  Mason,  4.51.  the  Countess  of  Dover,  2  Hagg.  149,  152, 
^  In  the  High  Court  of  Admiralty  in     n.     See  s)(/)ra,  §  412. 

England,  when  cases  of  salvage  are  brought         *  The  Towan,  8  Jur.  222. 

upon  affidavits,  the  practice,  it  seems,  is,         ^  The  Lord  Hobart,  2  Dods.  101. 

VOL.  III.  25 


886  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VH. 

ture.^  Neither  is  an  affidavit  admissible  in  explanation  of  deposi- 
tions and  supplying  the  deficiencies  therein  ;  it  being  either  a 
contradiction  or  a  repetition  of  the  depositions.^  Nor  will  the 
court  receive  the  affidavit  of  a  party  in  explanation  and  justification 
of  his  conduct  in  certain  proceedings  which  had  appeared  in  evi- 
dence in  the  cause,  and  had  been  animadverted  upon  by  the 
opposing  counsel.^  The  general  nature  of  affidavits,  their  essen- 
tial requisites,  and  their  weight  and  effect,  are  regarded  in  all  the 
courts  in  a  manner  substantially  the  same ;  and  these  having 
been  already  fully  explained,  under  the  head  of  Evidence  in  Chan- 
cery,* no  further  consideration  of  the  subject  is  here  deemed  neces- 
sary. 

1  The  Apollo,  1  Hagg.  315.  ^  Wood  v.  Goodlake,  2  Curt.  97. 

»  The  Georgiana,  1  Dods.  399.  *  See  supra,  §§  379-385. 


PART  YU.]     OF   PLEADINGS   AND   PKACTICE   IN   PRIZE   CAUSES.  387 


CHAPTER    III. 

OF   PLEADINGS   AND   PRACTICE   IN   PRIZE   CAUSES. 

[*  §  437.    District  courts  of  United  States  have  all  the  powers  of  prize  courts. 

438.  Duty  of  captor  carefully  to  preserve  all  the  papers  and  writings  found  on  board 

the  prize,  and  to  transmit  the  whole  to  the  judge  of  the  district  to  which 
prize  is  ordered  to  proceed. 

439.  Commissioners   of  prize  take   examinations   in  preparatorio  of  master  and 

persons  on  board  captured  ship. 

440.  Captors  must  proceed  forthwith  to  an  adjudication  of  property  captured. 

441.  Allegations  in  libel. 

442.  Claim  to  the  property  must  be  made  by  owner  himself,  if  within  jurisdiction. 

443.  In  doubtful  cases  a  full  year  allowed  for  claimants  to  come  in.] 

§  437.  We  have  already  seen^  that  the  district  courts  of  the 
United  States  are  clothed  with  all  the  powers  of  prize  courts,  as 
recognized  in  the  law  of  nations.  The  mode  in  which  these  pow- 
ers are  exercised,  so  far  as  it  is  peculiar  to  prize  causes,  will  now 
briefly  be  considered. 

§  438.  Upon  the  capture  of  a  vessel,  as  prize  of  war,  it  is  the 
duty  of  the  captor  carefully  to  preserve  all  the  papers  and  writings 
found  on  hoard  the  prize,  and  to  transmit  the  ivhole  of  the  originals, 
unmutilated,  to  the  judge  of  the  district  to  which  the  prize  is 
ordered  to  proceed  ;  without  taking  from  the  prize  any  of  the 
money  or  other  property  found  on  board,  unless  for  its  better  pres- 
ervation, or  unless  it  is  absolutely  necessary  for  the  use  of  vessels 
of  the  United  States.^  The  delivery  of  the  papers  is  accompanied 
by  an  affidavit  that  they  are  delivered  up  in  the  same  condition  in 
which  they  were  taken,  without  fraud,  addition,  subduction  or 
embezzlement.  And  the  master,  and  one  or  more  of  the  princi- 
pal persons  belonging  to  the  captured  vessel,  are  also  to  be  brought 

\  Surra,  §  387.  though  somewhat  succinctly,  treated  in  the 

2  Stat.  1800,  ch.  33,  §  1,  Vol.  2,  p.  46  ;  Appendix  to   1    Wheaton's  Reports,  Note 

Articles  for  the  Government  of  the  Navy,  II.,  and    2  Wheaton's    Reports,  Note    I., 

arts.    7,8;  Wheat,   on  Captures,  p.  208.  usually  attributed  to  Mr.  Justice  Story. 
The   Practice   in    Prize    Causes   is   ably, 


388  LAW   OF   EVIDENCE  IN   ADMIRALTY.  [PART  VIL 

in  for  examination.^  It  is  an  ancient  and  fundamental  rule  of 
prize  proceedings,  that  the  master,  at  least,  of  the  captured  ship 
should  be  brought  in,  and  examined  upon  the  standing  interrog- 
atories, as  well  as  that  the  ship's  papers  should  accompany  the 
property  brought  before  the  court.  The  omission  to  do  this  must 
be  accounted  for  in  a  very  satisfactory  manner,  or  the  court  will 
withhold  its  sentence,  even  in  very  clear  cases.'-^  The  duty  of  an 
immediate  delivery  of  the  papers  is  equally  stringent,  and  every 
deviation  from  it  is  watched  with  uncommon  jealousy.  They  can- 
not, in  any  case,  be  returned  to  the  captors ;  but  the  custody  of 
them  belongs  to  the  court  alone. '^  Nor  are  the  captors  permitted 
to  decide  upon  the  materiality  of  the  papers  to  be  preserved  and 
brought  in  ;  but  it  is  their  duty  to  produce  all  which  are  found ; 
the  determination  of  their  value  and  relevancy  is  for  the  court,  at 
the  hearing.* 

§  439.  It  is  the  practice  of  courts  of  admiralty  and  prize,  in 
time  of  war,  to  appoint  coynmissioners  of  ^^rize,  to  take  the  exam- 
inations, in  preparatorio,  of  the  master  and  persons  on  board  the 
captured  ship,  and  to  perform  such  other  duties  respecting  the 
captured  property  as  may  be  specially  assigned  to  them  under  the 
rules  and  orders  of  the  court.  These  officers  are  duly  commis- 
sioned and  sworn.  They  are  ordinarily  charged  with  the  custody 
of  the  prize,  in  the  first  instance,  and  until  further  proceedings 
are  had.^ 

§  440.  It  is  the  duty  of  the  captors  forthwith  to  proceed  to  the 
adjudication  of  the  property  captured,  by  filing  a  libel  and  obtain- 
ing a  monition  to  all  persons  claiming  an  interest  in  the  property, 
to  appear  at  a  day  assigned,  and  show  cause  why  a  decree  of  con- 
demnation should  not  be  passed.  If  they  omit  or  unreasonably 
delay  thus  to  proceed,  any  person,  claiming  an  interest  in  the  prize, 
may  obtain  a  monition  against  them,  requiring  them  to  proceed  to 
adjudication  ;  which  if  tliey  fail  to  do,  or  fail  to  show  sufficient 
cause  for  condemnation  of  the  property,  it  will  be  restored  to  the 
claimants,  on  proof  of  their  interest  therein.^ 

§  441.    When  the  capture  is  made  by  a  national  ship,  the  libel 

1  Wheat,  on  Captures,  p.  280  ;  1  Wheat.  »  The  Diana,  2  Gall.  93,  95. 

495   496.  *  1'li(=  London  I'ackct,  2  Gall.  20. 

'■^'tIio  Aralxlla,  2  Gall.  370 ;  The  Fly-  ^  Wheat,   on    Captures,  App.  pp.  312, 

in"-  Fish,  M.  374  ;  The  S])eculation,  2  C.  369. 

Kol).  293  ;  Tiie  Anna,  5  C.  Kob.  375  [333],  ^  Wheat,  on  Captures,  p.  280. 
385  [347],  n.;  The  Dame  Catharine,  Hay 
&  lilar.  244. 


PACT  VII.]       OF    i'LKADIXGS    AND    PRACTICE    IN    PRIZE    CAUSES.  389 

is  filed  by  the  district  attorney,  in  behalf  of  the  United  States  and 
of  the  officers  and  crew  of  the  capturing  ship,^  It  briefly  alleges, 
in  distinct  articles,  first,  the  existence  of  the  war ;  secondly,  the 
name  and  rank  of  the  commanding  officer  of  the  capturing  ship, 
and  of  the  ship  then  under  his  command ;  thirdly,  the  time  and 
fact  of  the  capture,  as  having  been  made  on  the  high  seas,  with 
the  name  and  general  description  of  the  vessel  or  property  cap- 
tured ;  fourthly,  the  national  character  of  the  prize,  showing  it  to 
be  enemies'  property  ;  fifthly,  that  the  prize  is  brought  into  a  cer- 
tain port  in  the  district  and  within  the  jurisdiction  of  the  court ; 
sixthly,  that  by  reason  of  the  premises,  the  property  has  become 
forfeited  to  the  United  States  and  the  captors,  and  ought  to  be 
condemned  to  their  use  ;  and  lastly,  praying  process,  and  moni- 
tion, and  a  decree  of  condemnation  of  the  property,  as  lawful  prize 
of  war .2  When  the  capture  is  made  by  a  privateer,  or  by  private 
individuals,  the  captors  employ  their  own  proctor,  and  the  libel  is 
filed  by  the  commander  of  the  privateer,  in  behalf  of  himself  and 
crew,  or  by  one  or  more  of  the  individual  captors,  in  behalf  of  all. 
§  442.  If  a  claim  to  the  property  is  interposed,  it  should  be 
made  by  the  owner  himself,  if  within  the  jurisdiction,  and  not  by 
his  agent ;  the  captors  being  entitled,  in  that  case,  to  the  answer 
of  each  claimant,  severally,  upon  his  oath.^  It  must  be  accompa- 
nied by  a  test  affidavit,  stating  that  the  property,  both  at  the  time 
of  its  shipment  and  at  the  time  of  capture,  did  belong,  and,  if  re- 
stored, will  belong  to  the  claimant ;  but  an  irregularity  in  this  re- 
spect, in  a  case  otherwise  fair  and  free  from  suspicion,  will  not  be 
deemed  fatal.^  In  general,  the  claimant  must  make  his  claim  and 
affidavit,  without  being  assisted  by  the  papers  in  shaping  them ; 
and  if  they  be  found  substantially  to  agree  with  the  documents, 
he  will  afterwards  be  permitted  to  correct  any  formal  errors  from 

i  [The  suit  should  properly  be  brought  ferent     ground,  if  the   facts  warrant  it. 

in    the   name   of  the  United    States  ;  but  Schacht  v.  Olter,  33  Eng.  Law  &  Eq.  28.] 

the  objection  that  it  is  brought  in  the  name  [*  The  libel  need  not  allege  for  what  cause 

of  the  captors  is  merely  formal  and  cannot  a  vessel  has  been  seized,  or  has  become 

be  first  taken  on  appeal.     Jecker  v.  Mont-  prize  of  war.     It  is  enough  to  allege  the 

gomcry,  18  How.  110.     See  also  Proceeds  capture  generally  as  prize  of  war.     The 

of  Prizes,  1   Abb.  Adm.  49.5.     And  when  Andromeda,  2  Wallace,  U.  6.  R.  481.] 

the  proceeds  of  prizes  have  been  brought  ^  The   Lively,    1    Gall.   315,    337;  The 

into  court,  the  parties  entitled  thereto  may  Sally,  Id.  401  ;  The  Adeline,  9  Cranch, 

file  libels  in  their  own  names.     lb.]  286.     [The  claim  must   be  made   by  all 

■i  See  the  precedent  in  Wheat,  on  Cap-  the  owners,   equitable  as   well    as   legal, 

tures,   App.    No.    VII.     The  Fortuna,  I  The  Ernst  Merck,   33  Eng.  Law  &  Eq. 

Dods.  81.     [The  captor  is  not  confined  to  594.] 

the  case  on  which  the  seizure  was  made  ;  *  The  Adeline,  9  Cranch,  244,  286. 
but  may  obtain  condemnation  on   a  dif- 


390  LAW    OF   EVIDENCE   IN   ADMIRALTY.  [PART  VH. 

the  documents  themselves.  But  in  special  cases,  where  a  proper 
ground  is  laid  by  affidavits,  an  order  will  be  made  for  an  examina- 
tion of  such  papers  as  are  necessary  to  the  party  to  make  a  proper 
specification  of  his  own  claim,  but  not  for  a  general  examination 
of  all  the  ship's  papers.^  It  is  also  a  general  rule,  that  no  claim 
shall  be  admitted  in  opposition  to  the  depositions  and  the  ship's 
papers.  But  the  rule  is  not  inflexible ;  it  admits  of  exceptions, 
standing  upon  very  particular  grounds,  in  cases  occurring  in  times 
of  peace  or  at  the  very  commencement  of  war,  and  granted  as  a 
special  indulgence.  But  in  times  of  known  war,  the  rule  is  never 
relaxed.2  Neither  will  a  claim  be  admitted,  where  the  transaction, 
on  the  part  of  the  claimant,  was  in  violation  of  the  laws  of  his  own 
country,  or  is  forbidden  by  the  law  of  nature.^ 

§  443.  Where  no  claim  is  interposed,  if  the  property  appears  to 
belong  to  enemies,  it  is  immediately  condemned.  If  its  national 
character  appears  doubtful,  or  even  neutral,  the  court  will  not  pro- 
ceed to  a  final  decree,  but  will  postpone  further  proceedings,  with 
a  view  to  enable  any  person,  having  title,  to  assert  it  within  a  rea- 
sonable time  ;  and  this,  by  the  general  usage  of  nations,  has  been 
limited  to  a  year  and  a  day,  that  is,  to  a  full  year,  after  the  institu- 
tion of  the  prize  proceedings.  If  no  claim  is  interposed  within  that 
period,  the  property  is  deemed  to  be  abandoned,  and  is  condemned 
to  the  captor  for  contumacy  and  default  of  the  supposed  owner.* 
In  fine,  the  end  of  a  prize  court,  as  was  said  by  Lord  Mansfield,  is 
to  suspend  the  property  until  condemnation  ;  to  punish  every  sort 
of  misbehavior  in  the  captors  ;  to  restore  instantly,  velis  velatis,  if, 
upon  the  most  summary  examination  there  does  not  appear  suffi- 
cient ground  to  condemn;  but  if  the  goods  really  are  prize,  to 
condemn  finally,  against  everybody,  giving  everybody  an  opportu- 
nity of  being  lieard.  A  captor  may,  and  must,  force  every  person 
interested  to  defend ;  and  every  person  interested  may  force  him 
to  proceed  to  condemnation  without  delay .^ 

1  The  San  Jose  Intlisino,  2  Gall.  269 ;  77,  83.     And  sec  1  Wheat.  App.  Note  II. 

The  Port  Marv,  :i  C.  Rob.  233.  p.  501.  and  cases  there  cited. 

^  The  Diana,  2   Gall.'  93,   96,97;  The  *  The   Harrison,    1    Wheat.   298;    Tho 

Vrow   Anna   Catherina,  5  C.  Kob.  15,  19  Staat  Enilulcn,  1  C.  Rob.  26,  29. 

[20,  24)  ;  La  Flora,  6  C.  Roh.  I.  ^  Lindo  v.  Rodney,  2  Doug.  641,  n. 

8  The  Washington  Packet,  2  W.  Rob. 


PART  Vn.]  OF  EVIDENCE  IN   PRIZE   CAUSES.  391 


CHAPTER    lY. 

OF   EVIDENCE  IN   PRIZE   CAUSES. 

[*§444.   Examinations  of  captured  master  and  crew  taken  on  standing  interrogato- 
ries. 

445.  This  preparatory  examination  confined  to  persons  on  board  the  prize.     Re- 

strictions in  regard  to  it. 

446.  Manner  of  taking  it. 

447.  Testimony  upon  which  cause  is  first  tried. 

448.  Rule,  that  evidence  in  first  instance  must  come  from  papers  and  crew  of  cap- 

tured vessel,  sometimes,  and  how  far,  relaxed. 

449.  In  cases  of  joint  or  collusive  capture,  other  evidence  sometimes  admitted, 

4.50.  Utmost  despatch  required  in  completing  preparatory  examination. 

4.51.  Documents  found  on  board  the  prize  admissible  in  evidence,  whatever  their 

character.     Other  documents  governed  by  general  rules  of  evidence. 

452.  Title  to  ship  proved  only  by  bill  of  sale. 

453.  Circumstances  tending  to  condemn  a  ship. 

454.  No  person  incompetent  from  interest. 

455.  Commissions  rarely  sent  to  take  evidence  in  an  enemy's  country. 

456.  Official  declarations  of  a  foreign  state  to  a  certain  extent  admissible. 

457.  Other  testimony  besides  the  preparatory  examination  taken  as  in  other  cases 

of  admiralty  jurisdiction. 

458.  Presumptions  in  prize  courts. 

459.  Possession  is  presumptive  evidence  of  owmership. 

460.  Public  ships  of  war  actually  in  sight  or  associated  together  by  public  authority, 

presumed  to  assist  in  capture. 

461 .  Persons  presumed  to  belong  to  the  country  in  which  they  have  their  domicile.] 

1.    IN   PREPARATOKIO. 

§  444.  The  prize  being  brought  in,  and  all  the  papers  found  on 
board  being  delivered  into  court,  and  notice  thereof  being  given 
by  the  captors  to  the  judge,  or  to  the  commissioners  of  prize,  the 
next  thing  forthwith  to  be  done  is,  to  take  examinations  of  the  cap- 
tured master  and  crew,  upon  the  standing  interrogatories.  This  is 
seldom  done  by  the  judge,  in  person,  but  is  usually  performed  by 
the  commissioners,  by  his  order.  The  standing  interrogatories  are 
prepared  under  the  direction  of  the  judge,  and  contain  sifting 
inquiries  upon  all  points  which  may  affect  the  question  of  prize ; 


392  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VIL 

of  which  those  used  in  the  high  court  of  admiralty  in  England 
are  understood  to  furnish  the  most  approved  model,  and  are  simi- 
lar to  those  adopted  in  the  practice  in  prize  causes  in  the  United 
States. 1 

§  445.  This  preparatory  examination  is  confined  to  the  persons  on 
hoard  the  prize,  at  the  time  of  capture,  unless  the  special  permis- 
sion of  the  court  is  obtained  for  the  examination  of  others.^  And, 
in  order  to  guard  as  far  as  possible  against  frauds  and  misstate- 
ments from  aftor-contrivances,  the  examination  should  take  place 
as  soon  as  possible  after  the  arrival  of  the  vessel,  and  without  per- 
mitting the  witnesses  to  have  intercourse  with  counsel.  The  cap- 
tors, also,  should  introduce  all  the  witnesses  in  immediate  succes- 
sion, and  before  any  of  the  depositions  are  closed  and  transmitted 
to  the  judge  ;  for  after  the  depositions  are  taken  and  transmitted, 
the  commissioners  are  not  at  liberty,  witliout  a  special  order,  to 
examine  other  witnesses  subsequently  adduced  by  the  captors.^ 
The  same  rule  is,  with  equal  strictness,  applied  to  the  conduct  of 
the  claimants.  Thus,  when  a  person  calling  himself  the  super- 
cargo of  the  prize,  produced  himself  before  the  commissioners  two 
days  after  the  vessel  came  into  port,  and  offered  papers  in  his  pos- 
session, they  refused  to  examine  him,  because  the  testimony  was 
not  offered  immediately  ;  and  the  judge  confirmed  their  decision.* 
The  ship's  papers  and  other  documents  found  on  board  and  not 
delivered  to  the  judge  or  the  commissioners,  previous  to  the  ex- 
aminations, will  not  be  received  in  evidence.^ 

§  446.  In  regard  to  the  manner  of  the  examination,  though  it  is 
upon  standing  interrogatories,  and  the  witnesses  are  not  allowed 
the  assistance  of  counsel,  yet  they  are  produced  in  the  presence  of 
the  parties  or  their  agents,  before  the  commissioners,  whose  duty 
it  is  to  superintend  the  regularity  of  the  proceeding,  and  to  protect 
the  witnesses  from  surprise  or  misrepresentation.  When  the  dep- 
osition is  taken,  each  sheet  is  afterwards  read  over  to  the  witness, 
and  separately  signed  by  him,  and  then  becomes  evidence  common 
to  both  parties.*^     It  is  the  duty  of  the  commissioners,  not  merely 

1  1  Whciit.  495.  The  English  intcrro-  ^  The  Speculation,  2  C  Rob.  293  ;  I 
j^atories  arc  printed  at  large  in    1    C.  Rob.     Wheat.  496,  497. 

;j81-389.      Those   used    in    the    United  *  The  Anna,  1  C.  Rob.  33 i. 

Sf.itcs   mav  be  found  in  2  Wheat.  App.  ^  ii,i,i. ;  i   Wheat.  497,  498';  The  Ann 

pp.  81-87."  Green,  1  Gall.  281. 

2  1  Wheat.  496 ;  The  Eliza  &  Katy,  1  «  The  Apollo,  5  C.  Rob.  [286],  256, 
C.  Rob.  189,  190  ;  The  Ilcnrick  &  Maria,  257. 

4  C.  Rob  57  ;  The    Haaber,   C.  Rob.  .54, 
55;  The  Fortuna,  1  Dods.  81. 


FART  Vn,]  OF   EVIDENCE   IN   PRIZE   CAUSES.  393 

to  require  a  formal  direct  answer  to  every  part  of  an  interrogatory, 
but  to  require  the  witness  to  state  the  facts  with  such  minuteness 
of  detail  as  to  meet  the  stress  of  every  question,  and  not  to  evade 
a  sifting  inquiry  by  vague  and  obscure  statements.^  To  prevent 
fraudulent  concert  between  the  witnesses,  they  are  examined  apart 
from  each  other.  And  if  a  witness  refuses  to  answer  at  all,  or  to 
answer  fully,  the  commissioners  are  to  certify  the  fact  to  the 
court ;  in  which  case  the  witness  will  be  liable  to  be  punished  for 
the  contempt,  and  the  claimants  will  incur  the  penal  consequences 
to  the  ship  and  cargo,  resulting  from  a  suppression  of  evidence. 
As  soon  as  the  examinations  are  completed,  they  are  to  be  sealed 
up,  directed  to  the  judge  of  the  district,  and  transmitted  to  the 
clerk-'s  office,  together  with  all  the  ship's  papers  which  have  not 
already  been  lodged  there  by  the  captors.^ 

§  447.  It  is  upon  this  lore^paratory  testimony,  consisting  of  the 
ship's  papers,  the  documents  on  board,  and  the  depositions  thus 
taken,  that  the  cause  is,  in  the  first  instance,  to  he  heard  and  tried.^ 
And  in  weighing  this  evidence,  the  master  and  the  crew  of  the 
captured  ship  are  ordinarily  regarded  as  having  no  interest  in  the 
condemnation  of  the  vessel,  but  on  the  contrary  as  being  concerned 
to  defend  their  employers  ;  and  as  having  a  natural  prepossession 
in  favor  of  their  employment,  and  therefore  as  being  most  favora- 
bly inclined  to  the  side  of  the  claimant.  If  there  is  a  repugnance 
between  the  depositions  and  the  documents,  it  does  not  necessarily 
follow  that  the  conviction  of  the  court  must  be  kept  in  equilihrio 
until  it  can  receive  further  proof;  for  though  such  is  the  general 
rule  in  courts  of  admiralty,  yet  it  is  a  rule  by  no  means  inflexi- 
ble ;  but  it  is  liable  to  many  exceptions,  sometimes  in  favor  of 
depositions,  and  sometimes,  though  more  rarely,  on  the  side  of  the 
documentary  evidence ;  the  preponderance  being  determined  by 
the  court,  upon  a  consideration  of  all  the  circumstances  of  the 
case.^  It  is,  however,  to  be  observed,  that  the  captured  property 
itself,  being  before  the  court,  constitutes  a  part,  and  often  an  es- 
sential part,  of  the  original  evidence  upon  which  the  cause  is  in 
the  first  instance  to  be  tried ;  affording,  in  many  cases,  a  certainty 
which  no  papers  can  give.  Whenever,  therefore,  a  proper  founda- 
tion is  laid,  the  court  will  direct  a  survey,  in  order  to  ascertain 

1  The  Ann  Green,  1  Gall.  273,  284.  498;  The  Liverpool  Packet,  1  Gall.  516; 

2  1  Wheat.  498.  2  Browne,  Civ.  &  Adm.  Law,  p.  451. 
8  The  Vigilantia,  I  C.  Rob.  1,4;  The         *  The  Vigilantia,  supra. 

Ann  Green,  1   Gall.  281,282;  I    Wheat. 


894  LAW   OF   EVIDENCE  IN  ADMIRALTY.  [PART  VH. 

the  nature  and  character  of  the  property  in  question,  or  will  other- 
wise satisfy  itself  on  the  point,  by  proof.^ 

§  448.  But  this  rule  of  the  law  of  prize,  that  the  evidence  to 
acquit  or  condemn  must,  in  the  first  instance,  come  from  the  pa- 
pers and  crew  of  the  captured  vessel,  also  admits  of  some  relaxa- 
tion; by  allowing  the  captors,  under  peculiar  circumstances,  to  ad- 
duce extrinsic  testimony.  Thus,  depositions  and  documents  may 
sometimes  be  invoked  from  another  cause,  and  papers  found  on  board 
other  ships  may  sometimes  be  admitted,  and  in  some  other  cases  of 
reasonable  doubt  or  pregnant  suspicion,  the  captors  will  not  be 
excluded  from  the  benefit  of  dihgent  inquiries.  But  no  papers 
ought  to  be  admitted  as  coming  from  the  ship,  which  are  not  pro- 
duced at  the  first  examination.^  Thus,  where  a  ship  had  been 
stopped  and  searched,  and  a  letter  had  been  taken  out  by  the 
cruising  vessel,  and  the  ship  being  afterwards  captured  and  libelled 
as  prize,  it  was  prayed  by  the  captors  that  this  letter  might  be  in- 
troduced on  further  proof,  the  court  refused  to  admit  it;  the 
learned  judge  observing,  that  it  was  by  no  means  the  disposition 
of  the  court  to  encourage  applications  of  this  kind ;  that  it  had 
seldom  been  done,  except  in  cases  where  something  appeared  in 
th6  original  evidence  to  lead  to  further  inquiry ;  and  not  where 
the  matter  was  foreign  and  not  connected  with  the  original  evi- 
dence in  the  cause,  but  tended  to  lead  the  practice  of  the  court 
from  the  simplicity  of  prize  proceedings,  and  to  introduce  an  end- 
less accumulation  of  proof.^ 

§  449.  In  cases  of  joint  or  collusive  capture,  also,  the  simplicity 
of  prize  proceedings  is  necessarily  departed  from ;  and  where,  in 
these  cases,  circumstances  of  doubtful  appearance  occur,  the  court 
will  permit  the  parties  to  adduce  other  evidence  than  that  which 
is  furnished  from  the  captured  vessel,  or  is  invoked  from  other 
prize  causes.* 

1  The  Liverpool  Packet,  1    Gall.  .513,  cause  have  been  rejected.     See  Dearie  v. 

520.     And  sec  the  Carl  Walter,  4  C.  Rob.  Southwell,  2   Lee,  93.     In   another  case, 

207,213;  The  Richmond,  .5  C.  Rob.  [.'$25],  the  rule  was  stated    to    be,  that   ori;,nnal 

290,  294  ;  The  Jonge  Margaretha,   1    C.  evidence,   and    depositions   taken   on   the 

Rob.  189,  191.  standing  interrogatories,  may  be  invoked 

^  The  Ann   Green,  1   Gall.  274,  282 ;  1  from  one  prize  cause   into   another;   but 

Wheat.  499;  The  Apollo,  5  C.  Rob.  2.56;  depositions  taken  as  further  proof  in   one 

The   Vrieinlschap,   4   C.    Hob.    166;    The  cause   cannot   be    used  in    another.     The 

Nied     Ehvin,    i    Dods.  54.  But    see  The  E.xperimcnt,  4  Wheat.  84. 

Romeo,  6  C.  Rob.  351.     It  seems  that  pa-  ^  The  Sarah,  9  C.  Rob.  330  ;  cited  and 

pers  cannot  be  invocated,  except  when  the  approved  in  The  Liverpool  Packet,  1  Gall, 

cause  is  either  between  the  same  parties,  516.     Rut  see  The  Romeo,  6  C.  Rob.  351 ; 

or  on  the  same    point.     Appliciitions    for  Infra,  §  463. 

the  invocation  of  proceedings  fium  another  "*  The  George,  1  Wheat.  408.     The  rea- 


PART  VII.] 


OF   EVIDENCE   IN   PRIZE    CAUSES. 


395 


§  450.  In  regard  to  the  time  within  tvhich  the  preparatory  exam- 
ination must  he  completed^  no  particular  period  seems  to  be  definite- 
ly fixed  by  the  general  admiralty  law  ;  it  being  only  required  that 
in  this,  as  in  all  other  prize  proceedings,  the  utmost  despatch  be 
observed.  But,  by  the  English  law,  the  judge  or  commissioners 
are  to  finish  the  examination  within  five  days  after  request  made 
for  that  purpose.^      This   period   has   been   mentioned   by   some 


sons  for  this  relaxation  of  the  rule  were 
thus  explained  by  Marshall,  C.  J.  :  "  It  is 
certainly  a  jjeneral  rule  in  prize  causes 
that  the  decision  should  be  prompt;  and 
should  be  made,  unless  some  jjrood  reason 
for  departing;  from  it  exists,  on  the  papers 
and  testimony  afforded  by  the  captured 
vessel,  or  which  can  be  invoked  from  the 
papers  of  other  vessels  in  possession  of  the 
court.  This  rule  oupht  to  be  held  sacred 
in  that  whole  description  of  causes  to 
which  the  reasons  on  which  it  is  founded 
are  applicable.  The  usual  controversy  in 
prize  causes  is  between  the  captors  and 
captured.  If  the  captured  vessel  be  plain- 
ly an  enemy,  immediate  condemnation  is 
('crtain  and  proper.  But  the  vessel  and 
cargo  may  be  neutral,  and  may  be  captured 
on  suspicion.  This  is  a  grievous  vexation 
to  the  neutral,  which  ought  not  to  be  in- 
creased hy  prolonging  his  detention,  in  the 
hope  that  something  may  be  discovered 
from  some  other  source  which  may  justify 
condemnation.  If  his  papers  are  all  clear, 
and  if  the  examinations  in  preparatorio  all 
show  his  neutralitv,  he  is,  and  ought  to  be, 
immediately  discharged.  In  a  fair  trans- 
action this  will  often  be  the  case.  If  any- 
thing suspicious  appears  in  the  papers, 
which  involves  the  neutrality  of  the  claim- 
ant in  doubt,  he  must  blame  himself  for 
the  circumstance,  and  cannot  complain  of 
the  delay  which  is  necessary  for  the  re- 
moval of  those  doubts.  The  whole  pro- 
ceedings are  calculated  for  the  trial  of  the 
question  of  prize  or  no  prize,  and  the 
standing  interrogatories  on  which  the  pre- 
paratory examinations  are  taken  are 
framed  for  the  purpose  of  eliciting  the 
truth  on  that  question.  They  are  intend- 
ed for  the  controversy  between  the  captors 
and  the  captui'cd  ;  intended  to  draw  forth 
everything  within  the  knowledge  of  the 
crew  of  the  prize,  but  cannot  be  intended 
to  procure  testimony  respecting  facts  not 
within  their  knowledge.  When  the  ques- 
tion of  prize  or  no  prize  is  decided  in  the 
affirmative,  the  strong  motives  for  an  im- 
mediate sentence  lose  somewhat  of  their 
force,  and  the  point  to  which  the  testimony 
in  preparatorio  is  taken,  is  no  longer  the 
question  in  controversy.     If  another  ques- 


tion arises,  for  instance,  as  to  the  propor- 
tions in  which  the  owners  and  crew  of  the 
capturing  vessel  are  entitled,  the  testimony 
which  will  decide  this  question  must  be 
searched  for,  not  among  the  papers  of  the 
prize  vessel,  or  the  depositions  of  her  crew, 
but  elsewhere,  and  liberty  must  therefore 
be  given  to  adduce  this  testimony.  The 
case  of  ajoint  capture  has  been  mentioned, 
and  we  think,  correctly,  as  an  analogous 
case.  Where  several  cruisers  claim  a  share 
of  the  prize,  extrinsic  testimony  is  admit- 
ted to  establish  their  rights  They  are 
not,  and  ought  not  to  be,  confined  to  the 
testimony  which  may  be  extr.icted  from 
the  crew.  And  yet  the  standing  interrog- 
atories are,  in  some  degree,  adapted  to  this 
case.  Kach  individual  of  the  crew  is  always 
asked  whether,  at  the  time  of  capture,  any 
other  vessel  was  in  sight.  Notwithstand- 
ing this,  the  claimants  to  a  joint  interest 
in  the  prize  are  always  permitted  to  adduce 
testimony  drawn  from  other  sources  to  es- 
tablish their  claim.  The  case  before  the 
court  is  one  of  much  greater  strength. 
The  captors  are  charged  with  direct  and 
positive  fraud,  which  is  to  strip  them  of 
rights  claimed  under  their  commissions. 
Even  if  exculpatory  testimony  could  be 
expected  from  the  prize  crew,  the  interrog- 
atories are  not  calculated  to  draw  it  from 
them.  Of  course,  it  will  rarely  hapj)en 
that  testimony  taken  for  the  sole  par])ose 
of  deciding  the  question  whether  the  cap- 
tured vessel  ought  to  be  condemned  or  re- 
stored, should  furnish  sufficient  lights  for 
determining  whether  the  capture  has  been 
hona  Jide  or  collusive.  If  circumstances 
of  doubtful  appearance  occur,  justice  re- 
quires that  an  opportunity  to  explain  those 
circumstances  should  be  given  ;  and  that 
fraud  should  never  be  fixed  on  an  individ- 
ual until  he  has  been  allowed  to  clear  him- 
self from  the  imputation,  if  in  his  power 

"  Under  these  impressions,  the  case  must 
be  a  strong  one  ;  indeed,  the  collusiveness 
of  the  capture  must  be  almost  confessed, 
before  the  court  could  tliink  a  refusal  to 
allow  other  proof  than  is  furnished  by  the 
captured  vessel  justifiable."  1  Wheat. 
409-411. 

1  2  C.  Rob.  295,  note  (a). 


396  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VIL 

writers  as  the  general  rule,^  and  it  certainly  is  in  accordance  witli 
the  principle  just  mentioned. 

2.    DOCUMENTS. 

§  451.  As  to  the  admissibility  of  documents  in  prize  causes,  those 
found  on  board  the  prize  are  of  course  admitted,  from  that  circum- 
stance alone,  whatever  may  be  their  character ;  they  being  part  of 
the  mainour,  so  to  speak,  with  which  the  prize  was  taken.  The 
admissibility  of  other  documents  is  determined  by  the  general  rules 
of  evidence  heretofore  considered.  And  the  same  distinction  is 
to  be  observed  respecting  the  proof  of  documents  ;  those  found  on 
board  the  captured  vessel  being  admitted,  primd  facie,  without 
other  proof  of  their  genuineness  than  the  fact  of  their  having  been 
there  found  and  the  verification  of  them  by  the  master  of  the 
ship; 2  while  the  proof  of  other  papers  is  governed  by  the  other 
rules  above  referred  to. 

§  452.  It  is  of  course  expected  that  every  ship  has  on  board  the 
proper  and  usual  documents,  showing  hernatio7ial  character  and  own- 
ership, and  the  imioceiit  nature  of  her  employment ;  and  that  these 
are  carefully  preserved,  and  readily  submitted  to  the  inspection  of 
the  captors.  These  documents  have  been  described,  in  consider- 
ing the  documentary  evidence  in  instance  causes.^  But  the  proof 
of  title,  for  obvious  reasons,  is  required  with  more  strictness  in. 
prize  proceedings  than  in  others ;  and  hence  the  legal  title  of  the 
ship  can  be  asserted  in  the  prize  court  only  as  to  those  persons  to 
whom  it  is  conveyed  by  the  hill  of  sale,  irrespective  of  any  equita- 
ble interest  claimed  by  others  ;  the  court  looking  singly  to  the  bill 
of  sale,  the  document  recognized  by  the  law  of  nations,  and  deci- 
sive of  the  ownership.  If,  by  this  document,  the  vessel  stands  as 
enemy's  property,  it  is  condemned  as  such,  leaving  equitable  inter- 
ests, if  any  exist,  to  other  jurisdictions.^  And  so  important  is  the 
production  of  this  document  deemed,  that  its  absence  alone,  ac- 
cording to  the  constant  habits  of  the  admiralty  court,  founds  a 
demand  on  the  party  for  further  proof.^ 

§  453.  The  grand  circumstances  which,  as  Dr.  Browne  ob- 
serves,*^ if  proved,  go  strongly  to  condemn  the  ship,  or  at  least  to 

1  2  Browne,  Civ.  &  Adm.  Law,  p.  446;  And  see  The  Sisters,  5  C.  Rob.  [155], 
Jacohson's  Sea  Laws,  p.  405.  138  ;  The  Viffilantia,  1  C.  Rob.  1. 

2  The  Juno,  2  C.  Rob.  122.  ^  'phc  Welavait,  1  C.  Rob.  122. 

8  Supra,  §§  417  -  4.32.  6  2  Browne,  Civ.  &  Adm.  L.  p.  451. 

*  The  San  Jose  Indiano,  2  Gall.  284. 


PART  Vn.]  OF  EVIDENCE   IN   PRIZE   CAUSES.  397 

excite  strong  suspicion,  relate  chiefly  to  this  documentary  evi- 
dence. Among  these  are  said  to  be,  —  the  want  of  complete  and 
proper  papers  ;  the  carrying  of  false  or  colorable  papers  ;  the  throw- 
ing overboard  of  papers ;  j)T^^'varication  of  the  master  and  officers  in 
their  testimony  in preparatorio ;  spoliation  of  papers;  the  inability 
of  the  master  to  give  an  account  of  the  ownership ;  the  master's 
own  domicile  and  national  character  ;  his  conduct,  and  that  of  the 
vessel ;  the  time  when  the  papers  were  drawn  and  executed,  and 
whether  before  or  after  the  existence  of  the  war.  It  has  already 
been  seen^  that  the  presumption  from  the  spoliation  of  papers 
arises  more  readily  in  the  admiralty  courts  than  in  other  tribu- 
nals, and  is  administered  with  greater  stringency  and  freedom ; 
but  in  prize  causes  this  stringency  is  exhibited  with  more  vigilance 
and  force  than  in  those  on  the  instance  side  of  the  court.  Neutral 
masters  are  held  to  be  not  at  liberty  to  destroy  papers ;  and  if  they 
do  so,  the  explanation  that  they  were  mere  private  letters  will  not 
be  received.^  The  act  alone  was  ground  of  condemnation,  by  the 
law  of  nations ;  and  this  rule  is  said  to  be  administered  in  the 
French  and  other  continental  courts,  to  the  extent  of  the  princi- 
ple ;  but  in  the  British  prize  courts  the  rule  is  modified  to  this 
extent,  that  if  all  other  circumstances  are  clear,  this  alone  shall 
not  be  damnatory,  if  satisfactorily  accounted  for  ;  as,  for  example, 
if  it  were  done  by  a  person  with  intent  to  promote  private  inter- 
ests of  his  own.-^  A  similar  modification  of  the  rule,  in  principle, 
is  admitted  in  the  United  States.* 

3.   COMPETENCY   OF   PROOF. 

§  454.  It  has  already  been  stated,  in  regard  to  witnesses  in  the 
instance  court,^  that  the  objection  of  their  competency,  on  the 
score  of  interest,  was  generally  held  valid,  as  it  is  at  common  law. 
But  in  the  prize  court,  from  the  nature  of  the  subjects  in  judg- 
ment, it  is  obvious  that  this  rule  must  necessarily  be  subject  to 
many  and  large  exceptions.  The  practice  in  the  high  court  of 
admiralty  in  England  prior  to  the  recent  statute  on  this  subject 
seems  not  to  have  been  perfectly  uniform,  though  apparently  in- 
clining against  allowing  the  objection  of  interest  to  prevail,  upon 


1  Supra,  §  408.  The  Maria  Magdalena,  Hay  &  Mar.  247  j 

2  The  Two  Brothers,  1  C.  Rob.  133.  The  Rising  Sun,  2  C.  Rob.  104. 
8  The  Hendrick  &  Alida,  Hay  &  Mar.  *  The  Pizarro,  2  Wheat.  227. 

106;  The  Hunter,  1  Dods.  480.     And  see  ^  Supra,  §  414. 


398  LAW   OF   E\aDENCE   IN   ADMIRALTY.  [PART  VH. 

the  question  of  capture.^  But  in  the  United  States  it  has  been 
clearly  held,  that  the  common-law  doctrine  as  to  competency  is  not 
applicable  to  prize  proceedings ;  and  that  in  prize  courts,  no  per- 
son is  incompetent  as  a  witness  merely  on  the  ground  of  interest ; 
but  the  testimony  of  every  witness  is  admissible,  subject  to  all  ex- 
ceptions as  to  its  credibility ;  and  accordingly,  upon  an  order  for 
further  proof,  where  the  benefit  of  it  is  allowed  to  the  captors, 
their  attestations  have  been  held  clearly  admissible.^  The  tes- 
timony of  the  master,  officers,  and  crew  of  the  captured  ship  is 
also  admissible,  in  all  stages  of  the  cause,  on  the  same  principle. 
But  where  a  neutral  ship  was  captured  for  a  breach  of  blockade, 
and  a  question  arises  from  the  destination  of  the  ship,  though  in 
other  cases  the  court  is  disposed  to  give  great  attention  to  the  evi- 
dence of  the  master  and  mate,  their  testimony,  in  this  case,  will 
not  be  deemed  entitled  to  any  advantageous  preference.  For,  if 
there  was  a  fraudulent  design  to  evade  the  blockade,  the  master, 
and  probably  the  mate  also,  as  his  accomplice,  must  have  been  the 
principal  agents ;  and  therefore,  where  they  speak  of  the  situation 
of  the  vessel,  their  testimony  must  be  outweighed  by  that  of  the 
common  seamen,  unless  there  is  reason  to  suspect  that  these  have 
been  debauched  by  the  captors.^ 

§  455.  It  is,  however,  contrary  to  the  practice  of  the  prize 
court,  to  send  a  commission  to  take  evidence  in  an  enemy's 
country ;  *  not  that  an  alien  enemy  is  in  all  cases  and  univer- 
sally disabled  as  a  witness ;  but  that  the  cases  of  exception  are 
few.  Thus,  an  American  resident  in  France,  during  a  war  be- 
tween France  and  Great  Britain,  and  therefore  subject,  in  Eng- 
land, to  all  the  disabilities  of  a  French  merchant  as  to  the 
power  of  becoming  a  claimant  in  a  prize  proceeding,  was  never- 
theless deemed  not  incompetent  as  a  witness,  on  that  account.^ 

§  456.  The  official  declarations  of  a  foreign  state  are  also,  to  a 
certain  extent,  admissible  in  evidence.  Thus,  in  the  case  of  a  de- 
mand for  salvage  on  an  American  vessel,  recaptured  from  a  Span- 
ish crusier,  which  had  taken  her  as  prize  on  the  ground  that  she 
was  bound  to  Malta,  then  a  belligerent  port,  with  a  cargo  of  provi- 


1  The  Maria,  I   C.  Rob.  340,  353  ;  The  ^  The  James  Cook,  1  Edw.   Adm.  R. 
Drie  Gebroeders,  5  0.  Rob.  307,  note  («) ;  261. 

The  Galen,  2  Dod.s.  21  ;  The  Catherine  of  *  The   Magnus,    1    C.    Rob.   35  ;    The 

Dover.  2  Hag--;.  145.  Diana,  2  Gall.  97. 

2  The  Anne,  3  Wlicat.  435,  444.     And  ^  The  Talcon,  6  C.  Rob.  197. 
see  The  Grotius,  9  Crunch,  368. 


PART  Vn.]  OF   EVIDENCE   IN   PRIZE   CAUSES.  399 

sions  and  naval  stores  ;  a  document  under  the  seal  and  sign-manual 
of  the  President  of  the  United  States,  declaring  that  the  cargo  was 
the  property  of  the  United  States,  and  destined  for  the  supply  of 
its  squadron  in  the  Mediterranean,  was  held  admissible  in  proof  of 
that  fact.  The  learned  judge  on  that  occasion  observed,  that  great 
respect  is  due  to  the  declaration  of  the  government  of  a  State ;  not 
to  the  extent,  which  has  sometimes  been  contended  for,  that  the 
convoy  of  a  vessel  of  the  State,  or  public  certificates  that  the  goods 
on  board  are  the  property  of  its  subjects,  should  at  once  be  re- 
ceived as  sufficient  to  establish  that  fact,  and  to  supersede  all  fur- 
ther inquiry ;  because  it  is  very  possible  for  governments  to  be 
imposed  on  with  regard  to  facts  of  that  nature,  which  they  can 
take  only  on  the  representation  of  interested  individuals.  But 
when  there  is  an  averment  like  this,  relative  to  their  oivn  immediate 
acts,  it  would  be  a  breach  of  the  comity  and  respect  due  to  the  dec- 
larations of  an  independent  State,  to  doubt  the  truth  of  an  asser- 
tion which  could  not  have  been  made  but  upon  a  thorough  knowl- 
edge and  conviction  of  the  fact.^ 

4.    MODE    OF    TAKING   TESTIMONY. 

§  457.  We  have  seen  that  the  preparatory  examinations,  in 
prize  causes  are  ordinarily  taken  before  the  commissioners  of 
prize,  upon  the  standing  interrogatories,  and  sometimes,  though  rare- 
ly, before  the  judge.  Other  testimony  is  taken  in  the  mode  usual  in 
other  cases  of  admiralty  and  maritime  jurisdiction,  which  has 
been  sufficiently  stated.  But  in  the  supreme  court  of  the  United 
States,  in  all  cases  of  admiralty  and  maritime  jurisdiction  where 
new  evidence  may  be  admissible,  the  testimony  of  witnesses  must 
be  taken  under  a  commission,  issued  from  that  court,  or  from  any 
circuit  court  under  the  direction  of  a  judge  thereof,  upon  inter- 
rogatories and  cross-interrogatories  duly  filed ;  but  the  rule  does 
not  prevent  any  party  from  giving  oral  testimony  in  open  court,  in 
cases  where  by  law  it  is  admissible.^  No  other  seal  is  necessary 
to  be  affixed  by  the  commissioners  to  their  return,  than  the  seal  to 
the  envelope.^ 

5.    PRESUMPTIONS. 

§458.   In  prize  courts  there  are  CQiidiVa.  presumptions  which  le- 

1  The  Huntress,  6  C.  Rob.  110.  8  Grant  i;.  Naylor,  4  Cranch,  228 ;  Dunl. 

2  Rules  of  the  Supreme  Court,  Reg.  27  ;     Adm.  Pract.  255. 
The  London  Packet,  2  Wheat.  371. 


400  LAW   OF  EVIDENCE   IN  ADMIRALTY.  [PART  VIL 

gaily  affect  the  parties,  and  are  considered  of  general  application, 
and  which  therefore  deserve  particular  notice  in  this  place. 
These  relate  chiefly  to  the  ownership  of  the  property,  the  na- 
tional character  of  the  ship,  and  the  domicile  and  nationality  of 
the  master  and  claimants. 

§  469.  In  regard  to  the  title  and  owiiership,  possession  is  pre- 
sumptive evidence  of  property,  and  therefore  justifies  the  capture 
of  ships  and  cargoes  found  in  the  enemy's  possession,  though  it 
may  not  always  furnish  sufficient  ground  for  condemnation. ^  If, 
upon  further  proof  allowed  to  the  claimant,  there  is  still  a  defect 
of  evidence  to  show  the  neutral  character  of  the  property,  it  will  be 
presumed  to  belong  to  the  enemy .^  Goods,  found  in  an  enemy's 
ship,  are  presumed  to  be  enemy's  property,  unless  a  distict  neutral 
character  and  documentary  proof  accompany  them.^  Where  a 
ship  has  been  captured  and  carried  into  an  enemy's  port,  and  is  af- 
terwards found  in  the  possession  of  a  neutral,  the  presumption  is, 
that  there  has  been  a  regular  condemnation,  and  the  proof  of  the 
contrary  rests  on  the  claimant  against  the  neutral  possessor.* 
Ships  are  presumed  to  belong  to  the  country  under  whose  flag 
and  pass  they  navigate ;  and  this,  although  purchased  by  a  neu- 
tral, if  they  are  habitually  engaged  in  the  trade  of  the  enemy's 
country  ;  even  though  there  be  no  seaport  in  the  territory  of  the 
neutral.^  This  circumstance  is  held  conclusive  upon  their  charac- 
ter, against  the  claimant ;  he  being  not  at  liberty  to  deny  the 
character  which  he  has  worn  for  his  own  benefit  and  upon  the 
credit  of  his  own  oath  or  solemn  declaration.  But  it  is  not  con- 
clusive against  others  ;  for  these  are  still  at  liberty  to  show  that 
the  documentary  and  apparent  character  of  the  ship  was  fictitious, 
and  assumed  for  purposes  of  deception.''  So,  the  produce  of  an 
enemy's  colony  is  conclusively  presumed  to  be  enemy's  property,  so 
far  as  the  question  of  prize  is  concerned,  whatever  the  local  resi- 
dence of  the  true  owner  of  the  soil  may  be ;  and  accordingly,  the 

1  The  Resolution,  2  Dall.  19,  22.  ^  The  Fortuna,  1  Dods.  87;  The  Suc- 
[*Sce  Prize  Cases,  2  Black.  U.  S.  K.,  cess.  Id.  131;  2  Wheat.  App.  p.  30.  [Or 
535/1  that  the  transfer,  under  whicli  the  a])])ar- 

2  Wheat,  on  Captures,  App.  p.  312;  ent  owncrshij)  is  in  tlic  enemy,  was  merely 
The  Ma<rnus,  1  C.  Koh.  31,  35.  colorable.      The    Ocean    Bride,    .33  En<;. 

3  2  Wheat.  R.  App.  p.  24;  [*  The  Law  &  Eq.  .576.  In  case  of  an  alleged 
Sally  MaRce,  3  Wallace  U.  S.  R.  451.]  sale  to  a  neutral  just  before  the  war,  the 

*  The    Countess   of  Lauderdale,   4   C.  court  will  require  full  proof  of  the  sale, 

Rob.  283  ;  2  Wheat.  App.  p.  25.  value,  price,  and    payment.      The    Ernst 

6  The  Viplantia,  1  C.  Rob.  1,15;  The  Merck,  33  Eng.  Law  &  Eq.  594.    See  also 

Vrow  Anna  Catharina,  5    C.    Rob.    144,  The  Soglaizie,  lb.  587.] 
150  ;  2  Wheat.  App.  p.  28. 


i>ART  VII.]  OF   EVIDENCE   IN   PRIZE   CAUSES.  401 

claim  of  a  neutral  German  to  the  produce  of  a  plantation  descend- 
ed to  him  in  a  belligerent  Dutch  colony  was  rejected.^ 

§  460.  In  questions  oi  joint  capture,  also,  there  is  an  important 
presumption  in  prize  law,  in  favor  of  public  ships  of  war  ;  it  being 
generally  and  with  few  exceptions  presumed  that  all  such  ships 
actually  in  sight  were  assisting  in  the  capture,  and  therefore  are 
entitled  to  a  share  in  the  prize.^  And  the  benefit  of  this  presump- 
tion is  extended  to  all  ships  associated  together  by  public  autliuri- 
ty ;  as,  for  example,  in  a  blockading  squadron  ;  though  they  were 
not  all  in  actual  sight  at  the  moment  of  the  capture.^  But  in  the 
case  of  a  claim  of  joint  capture  by  a  private  vessel,  this  presump- 
tion is  not  admitted ;  but  the  claimant  must  prove  actual  intimi- 
dation, or  actual  or  constructive  material  assistance.^  The  reason 
of  this  distinction  is,  that  public  ships  are  under  a  constant  obliga- 
tion to  attack  the  enemy  and  capture  his  ships  wherever  seen  ; 
and  it  is  presumed  that  the  performance  of  this  duty  is  always  in- 
tended ;  but  privateers  are  under  no  such  obligation,  their  com- 
missions being  taken  for  mere  purposes  of  private  gain  by  plunder, 
which  they  are  at  liberty  to  pursue  or  not,  at  their  pleasure.  And 
in  regard  to  public  ships  in  sight,  the  presumption  may  be  repelled 
by  proof  that  the  ship,  claiming  as  joint  captor,  had  discontinued 
the  chase,  and  changed  her  course,  in  a  direction  inconsistent  with 
any  intent  to  capture  ;  or  by  proof  of  other  circumstances  plainly 
and  openly  inconsistent  with  such  design.^ 

§  461.  As  to  the  question,  ivho  are  to  he  considered  enemies  or 
not,  the  presumption  is,  that  every  person  belongs  to  the  country 
in  which  he  has  a  domicile,  whatever  may  be  the  country  of  his 
nativity  or  of  his  adoption.^  And  the  masters  and  crews  of 
ships  are  deemed  to  possess  the  national  character  of  the  ships  to 
which  they  belong,  during  the  time  of  their  employment.''  A  neu- 
tral consul,  resident  and  trading  in  a  belligerent  country,  will  be 
presumed  and  taken,  as  to  his  mercantile  character,  to  be  a  bel- 

1  The  Phoenix,  5  C.  Rob.  25  ;  The  ^  ggg  o  Wheat.  App.  pp.  60  -  67,  whcru 
Vrow  Anna  Catharina,  Id.  144,  150;  this  subject  is  treated  more  fully,  and  the 
Bovie  et  al.  v.  Bentzon,  9  Cranch,  191.  cases  are  cited. 

2  The  Dordrecht,  2  C.  Rob.  55,  64;  ^  The  Indian  Chief,  3  C.  Rob.  12,  22; 
The  Robert,  3  C.  Rob.  194.  The  President,  5  C.  Rob.  248;  Tlie  Ann 

3  The  For>igheid,  3  C.  Rob.  311,  316  ;  Green,  1  Gall.  274  ;  The  Venus,  8  Crunch, 
La  Flore,  5  C.  Rob.  239  ;  2  Wheat.  App.  253.     See  2  Wheat.  App.  27. 

p.  60.  ^  The    Embden,    1  C.    Rob.    16  ;    The 

*  [The  same  rule  applies  to  revenue  cut-     Endraujjht,  Id.  22;  The  Bernon,  Id.  102  ; 

ters  as  to  privateers.     The  Bellona,  Edw.     2  Wheat.  App.  p.  28. 

63.] 
VOL.  III.  26 


402  LAW   OF   EVIDENCE   IN   ADMIRALTY.  [PART  VII. 

ligerent  of  that  country .^  Altbougli  a  person  goes  into  a  belliger- 
ent country  originally  for  a  temporary  and  special  purpose  only, 
yet  if  he  continues  there  during  a  substantial  part  of  the  war,  and 
beyond  the  time  necessary  to  disengage  himself,  contributing,  by 
the  payment  of  taxes  and  other  means,  to  the  strength  of  that 
country,  the  original  and  special  purpose  of  his  coming  will  not 
sufi&ce  to  repel  the  presumption  of  his  hostile  character.^ 

1  The  Indian  Chief,  3  C  Rob.  22.  from  mercantile  domicile  is  further  pursued 

^  The  Harmony,  2  C.  Rob.  322.     The     in  2  Wheat.  App.  pp.  27-29. 
subject    of  belligerent   character    arising 


PART  VII.]  OF   FURTUr.R    PKOOF.  403 


CHAPTER    V. 


OF   FURTHER   PROOF/ 

f*  §  462.   Further  proof,  besides  ship's  papers  and  preparatory  examination,  admitted 
or  ordered  in  the  discretion  of  the  court. 

463.  Further  proof  rarely  ordered  by  the  court  itself,  unless  doubt  arises  from  the 

evidence  already  in  the  cause. 

464.  Claimant  admitted  to  further  proof  in  cases  of  reasonable  doubt,  where  his 

conduct  appears  fair  ;  his  own  affidavit  indispensable. 

465.  Court  is  reluctant  to  allow  further  proof  to  captors. 

466.  Further  proof  will  be  refused  to  the  claimant  where  he  has  been  guilty  of 

misconduct,  forfeiting  the  indulgence  of  the  court.     Illustrations. 

467.  Further  proof  must  be  in  documents  and  depositions.] 

§  462.  The  cause  having  been  heard,  upon  the  ship's  papers 
and  the  preparatory  examinations,  if  upon  such  hearing  it  still 
appears  doubtful,  it  is  in  the  discretion  of  the  court  to  allow  or 
require  further  proof,  either  from  the  claimants  alone,  or  equally 
from  them  and  the  captors. ^  In  some  cases  it  is  required  by  the 
court,  for  its  own  relief  from  doubt ;  in  others,  it  is  allowed  to 
the  party,  to  relieve  his  case  from  suspicion ;  and  it  may  be  re- 
stricted to  specific  objects  of  inquiry.  It  may  be  ordered  upon 
affidavits  and  other  papers,  introduced  without  any  formal  allega- 
tions, which  is  the  more  modern  and  usual  mode,  introduced  for 
the  sake  of  convenience  ;  or  it  may  be  ordered  upon  plea  and  proof, 
according  to  the  more  ancient  course  ;  in  which  case  the  cause  is 
opened  to  both  parties,  de  novo,  upon  new  and  distinct  allegations.^ 
Plea  and  proof  has  been  termed  "  an  awakening  thing  "  ;  admon- 
ishing parties  of  the  difficulties  of  their  situation,  and  calling  for 
all  the  proof  which  their  case  can  supply.*     "When  further  proof  is 

1  See,  on  this  subject,  1  Wheat.  App.  uous  as  to  render  a  decision  difficult.  The 
Note  I. ;  2  Wheat.  App.  Note  II.  Samuel,  1  Wheat.  9. 

2  [*  The  Sally  Magee,  3  Wallace  U.  S.         ^  The  Minerva,  1  W.  Rob.  169. 

R.  452.]     Further  proof  is  not  peculiar  to  *  The  Magnus,  1  C.  Rob.  33.     And  see 

prize  causes.     The  court  will  order  it  on  2  Browne,  Civ.  &  Adm.  L.  p.  453  ;  The 

the  instance  side,  in  a  revenue  cause,  where  Ariadne,  1   C.  Rob.  313;    The    Sally,    1 

the  evidence  is  so  contradictory  or  ambig-  Gall.  403. 


40-1:  LAW    OF    EVIDENCE   IX   ADMIRALTY.  [PART  VIL 

allowed  to  the  claimants,  in  the  ordinary  mode,  the  captors  are 
not  permitted  to  contradict,  by  affidavits,  the  testimony  brought 
in  ;  counter-proof  on  the  part  of  the  captors  being  admissible  only 
under  the  special  direction  of  the  court.^ 

§  463.  Further  proof  may  be  ordered  hy  the  court  itself,  upon 
any  doubt  arising  from  any  quarter;  whether  the  doubt  arises 
solely  from  the  evidence  already  in  the  cause,  or  is  raised  by  cir- 
cumstances extrinsic  to  that  evidence.  But  this  is  rarely  done 
upon  the  latter  ground,  unless  there  is  also  something  in  the  origi- 
nal evidence  which  suggests  further  inquiry.  Thus,  where  a  ves- 
sel was  stopped  and  searched  by  a  ship  of  war,  and  a  letter,  dis- 
closing the  hostile  character  of  the  vessel,  was  found  on  board  and 
was  transmitted  by  the  searching  officer,  officially,  to  tlie  king's 
proctor,  after  which  the  vessel,  being  permitted  to  proceed,  was 
captured  and  sent  in  by  another  cruiser ;  this  letter,  under  the 
circumstances,  was  allowed  to  be  introduced  on  further  proof.^ 
Where  the  case  is  perfectly  clear,  and  not  liable  to  any  just  sus- 
picion, upon  the  original  evidence,  the  court  is  not  disposed  to 
favor  tlie  introduction  of  extraneous  matter,  or  to  permit  the  cap- 
tors to  enter  upon  further  inquiries.^  And  where  further  proof  is 
ordered  by  the  court  expressly  with  respect  to  the  property  and 
destination  of  tlie  ship  on  the  return  voyage,  and  it  is  accordingly 
furnished  by  the  claimants,  the  captors  will  not  be  permitted  to 
argue  for  a  condemnation  on  a  new  ground  disclosed  by  the  fur- 
ther proof,  but  the  court  will  confine  all  objections  to  the  points 
already  designated  for  further  investigation.* 

§  464.  In  cases  of  reasonable  doubt,  the  court  will  admit  the 
claimant  to  further  pj'oof  where  his  conduct  appears  fair,  and  is 
not  tainted  with  illegality .^  It  is  the  privilege  of  honest  igno- 
rance, or  honest  negligence,  to  neutrals  who  have  not  violated  the 
law  of  neutrality  ;  as,  for  example,  for  the  absence  of  a  bill  of  sale 
of  a  ship  purchased  in  the  enemy's  country.^  So,  where  the  bill 
of  lading  is  unaccompanied  by  any  invoice  or  letter  of  advice,  the 
neutral  claimant  may  be  admitted  to  further  proof,  even  though 
the  ship  and  the  residue  of  the  cargo  were  belligerent,  and  the 

1  The  Ariadne,  1  C.  Kob.  313.  ^  Ibid.  ;  The  Alexander,  1  Gall.  532 

2  The  Komeo,  G  C.  Kob.  3.51.     But  in         *  The  Lydiahciid,  2  Acton,  133. 

a  prior  ease,  an  ap]ilieation  nearly  similar  ^  Tiio    i3othnea    &    Janstoff,    2    Gall. 

was  refused.     The  Sarah,  3  C  l(ob.  330  ;  82. 

Sxpra,  §  448.      And    sec    The    J.ivorpool  *^  The     Welvaart,     1     C.     Rob.     123, 

Fackot.'l  (iall.  .52.5  ;  The  Bothnea  &  Jan-  124. 

fitoli;  2  Gall.  78,  82. 


PART  VII.] 


OF   FURTHER   PROOF.  405 


master  had  thrown  papers  overboard.^  Further  proof  will  also  be 
allowed  to  the  claimant,  where  the  captors  have  been  guilty  of  ir- 
regularity, in  not  bringing  in  the  papers,  or  the  master  of  the  cap- 
tured ship.2  But  where  further  proof  is  allowed  the  claimant, 
proof  by  his  own  affidavit  is  indispensably  necessary,  as  to  his  pro- 
prietary interest,  and  to  explain  the  circumstances  of  the  transac- 
tion ;  and  the  absence  of  such  proof  and  explanation  always  leads 
to  considerable  doubt.^  If,  upon  an  order  for  further  proof,  the 
party  disobeys  or  neglects  to  comply  with  its  injunctions,  such  dis- 
obedience or  neglect  will  generally  be  fatal  to  his  claim.* 

§  465.  In  allowing  further  proof  to  captors,  the  court  is  more 
reluctant,  and  sparing  in  its  indulgence  ;  rarely  allowing  it  when 
the  transaction  appears  unsuspicious  upon  the  preparatory  testi- 
mony ;  and  never,  unless  strong  circumstances  or  obvious  equity 
require  it.  And  in  such  cases  it  is  admissible  only  under  the  spe- 
cial direction  of  the  court ;  which  can  never  be  obtained  where 
the  captors  have  been  guilty  of  gross  misconduct,  gross  ill-faith,  or 
gross  negligence,  the  attendant  of  fraud ;  or  where  the  case  does 
not  admit  of  a  fair  explanation  on  their  side  ;  for  the  court  will 
not  trust  with  an  order  for  further  proof  those  who  have  thus 
shown  that  they  mean  to  abuse  it.^ 

§  466.  An  order  for  further  proof  will  also  be  refused  to  the 
dahnant,  where  he  has  been  guilty  of  culpable  neglect,  or  of  bad 
faith,  or  other  misconduct,  justly  forfeiting  his  title  to  this  indul- 
gence from  the  court.  Thus,  it  has  been  refused  to  the  shippers 
in  a  hostile  ship,  who  had  neglected  to  put  on  board  any  docu- 
mentary evidence  of  the  neutral  character  of  the  shipment.^  So, 
where  a  neutral  had  fraudulently  attempted  to  cover  and  claim  as 
his  own  an  enemy's  interest  in  the  captured  property,  and  after- 
wards applied  for  the  admission  of  further  proof  as  to  his  own  in- 
terest in  the  same  property.^     So,  where  there  has  been  a  con- 

1  The  Friendschaft,  3  Wheat.  14,  48.  tho   supreme   court  of  the  Unitcfl  States. 

"  The  London  Packet,  1  Mason,  14.  The  makiny;  of  it  anywhere  i.s  controlled 

3  Thi>  Venus,  .5  Wheat.  127  ;  La  Ncrey-  by  the  circumstances  of  each  case.     It  is 

da,  8  Wheat.  108,  171.  made  with  great  caution,  because  of  the 

*  La    Ncrevda,  supra.      [The   claimant  temptntion  it  holds  out  to  fraud  and  per- 

will  not  be  allowed,  upon  further  proof,  to  jury.     It  is  made  only  wheri  the  interests 

contradict  his  own  testimony,  in  the  pre-  of  justice  clearly   require    it.     The    Sally 

paratorv  examination,  as    to    domicile  or  Macee,  3  Wallace  U.  S.  K.  4.59.] 

national  character.     El  Teleorafo,  1  Newb.  &  The  Bothnea  &  Janstoft",  2  Gall.  78, 

383.]      [*The  claimant  may  move  for  the  82;  The  George,  Id.  249,  352. 

order,  and  show  the  grounds  of  the  appli-  *>  The  Flyino;  Fish.  2  Gall.  374. 

cation  by  affidavit,  or  otherwise,  at    any  "^  The    Betsey,  2    Gall.    377.     And    see 

time  before  the  linal  decree  is   rendered;  The    Merrimack,    8    Cranch,    317;    The 

and  such  an   order  may  also  be  made  in  Graaf   Bernstoff,   3    C.   Rob.    109  ;    The 


406  LAW    OF   EVIDENCE   IN   ADMIRALTY.  [PART  YIL 

cealment  of  material  papers  ;  ^  or,  a  fraudulent  spoliation  or 
suppression  of  papers  ;  ^  or,  where  the  ship  purchased  of  the  ene- 
my has  been  left,  in  the  management  of  the  former  owner,  in  the 
enemy's  trade  ;  ^  or,  was  captured  on  a  return  voyage,  with  the 
proceeds  of  her  outward  cargo  of  contraband  goods,  carried  under 
false  papers  for  another  destination  ;  ^  or,  where  the  goods  were 
actually  shipped  for  neutral  merchants,  between  enemy's  ports, 
but  with  a  colorable  destination  to  a  neutral  port ;  ^  or,  where  any 
other  gross  misconduct  is  proved  against  the  claimants,  or  the 
case  appears  incapable  of  fair  explanation  ;^  or,  the  further  proof  ib 
inconsistent  with  that  already  in  the  case;^  or,  the  case  discloses 
mala  fides,  on  the  part  of  the  claimant.^ 

§  467.  As  to  the  mode  of  taking  testimony  in  cases  of  further 
proof,  it  is  to  be  observed,  that  mere  oral  testimony  is  never  ad- 
mitted ;  but  the  evidence  must  be  in  documents  and  depositions, 
taken  in  the  manner  already  mentioned.  In  the  Supreme  Court 
of  the  United  States  it  is  taken  upon  commissions  alone.^ 

Eenrom,  2    C.  Eob.    1 5  ;  The  Rosalie  &         ^  The  Carolina,  3  C.  Rob.  75. 

Bcttv,  Id.  343,  359;   [The  Ida,  29   Eng.         ^  The  Vrow  Hermina,  1   C.  Rob.  163, 

Law"  &  Eq.  Rep.  .574.]  165;  The  Hazard,  9  Cranch,   209;    The 

1  The  Fortiina,  3  Wheat.  392.  Pizarro,  2  Wheat,  227. 

2  The    St.  Lawrence,  8    Cranch,  434.         '  The  Euphrates,  8  Cranch,  385  ;  The 
But  if  the  master  should  su[)prcss  papers  Orion,  I  Acton,  205.     But  that  this  rule  is 
relatins?  solely  to  his  own  interest,  this  will  not  inflexible,  see  La  Flora,  6  C.  Rob.  1. 
not  aflect  the  claim  of  the  owners.     The         ^  The  JufFrouw  Anna,  1  C.  Rob.  126. 
Risincr  Sun,  2  C.  Rob.  108.  ^  The  George,  2  Gall.  249,  252  ;  Rules 

3  The  Jennv,  4  C.  Kob.  31.  of  the  Supreme  Court,  Reg.  25,  27  ;  aS'ii- 
*  The  Nancy,  3  C.  Rob.  122.                        pra,  §  457. 


PART   YIII. 


OF     EVIDENCE 


COURTS    MARTIAL. 


PART  VIII. 

OF    EVIDENCE    IN    COURTS   MARTIAL. 


CHAPTER     I. 

PRELIMINARY   OBSERVATIONS. 

[*  §  468.   Distinction  between  military  laio  and  martial  law  defined. 

469.  Tribunals  of  both  are  bound  by  the  common-law  rules  of  evidence. 

470.  The  law  presumes  nothing  in  favor  of  a  court  martial. 

471.  Accusation  ought  to  be  drawn  with  the  essential  precision  and  distinctness 

required  in  an  indictment  at  common  law. 

472.  Accusation  is  composed  of  charges  and  specifications. 

473.  Defendant  may  answer  by  a  plea  to  the  jurisdiction,  a  plea  in  bar,  and  by  the 

general  plea  of  not  guilty. 

474.  Judge  advocate  conducts  prosecution  in  the  name  of  the    United   States. 

Other  duties. 

475.  Military  and  naval  courts  of  inquiry  in  the  United  States  have  a  legal  consti- 

tution and  authority.     The  extent  of  the  same.] 

§  468.  In  entering  upon  the  subject  of  evidence  in  courts  mar- 
tial we  are  led  first  to  observe  the  distinction  between  martial  law 
and  that  which  is  commonly,  and  for  the  sake  of  this  distinction, 
termed  military  law.  The  difference  between  them  relates  more 
directly  to  the  subjects  of  jurisdiction,  but  in  its  results  it  affects 
the  rules  of  evidence.  In  the  language  of  Lord  Loughborough, 
"  where  martial  latv  prevails,  the  authority  under  wliich  it  is  exer- 
cised claims  a  jurisdiction  over  all  military  persons,  in  all  circum- 
stances. Even  their  debts  are  subject  to  inquiry  by  a  military  au- 
thority ;  every  species  of  offence,  committed  by  any  person  who 
appertains  to  the  army,  is  tried,  not  by  a  civil  judicature,  but  by 
the  judicature  of  the  regiment  or  corps  to  which  he  belongs."^ 

1  Grant  v.  Gould,  2  H.  Bl.  98. 


410 


LAW   OF   EVIDENCE   IN   COURTS   MARTIAL.  [PART  VIII. 


It  extends  also  to  a  great  variety  of  cases  not  relating  to  the  disci- 
pline of  the  army,  such  as  plots  against  the  sovereign,  intelligence 
to  the  enemy,  and  the  like.^  It  is  "  founded  on  paramount  neces- 
sity, and  is  proclaimed  by  a  military  chief" ;  and  when  it  is  im- 
posed upon  a  city  or  other  territorial  district,  all  the  inhabitants 
and  all  their  actions  are  brought  within  the  sweep  of  its  dominion.^ 
But  military  law  has  its  foundation  and  limits  in  the  statutes  for 
establishing  rules  and  articles  for  the  government  of  the  army  and 
navy,  and  in  the  instructions  and  orders  issued  by  the  executive 
magistrate  pursuant  thereto,  and  in  virtue  of  his  authority  as 
Commander-in-Chief.  Its  jurisdiction  extends  only  to  those  who 
are  a  part  of  the  army^  in  its  various  grades  and  descriptions  of 
persons ;  and  it  is  limited  to  breaches  of  military  duty?  These 
breaches  of  duty  are  in  many  instances  strictly  defined ;  particu- 
larly in  those  cases  which  are  fatally  or  highly  penal ;  but  in 


1  Whether  persons  not  belonging  to  the 
army  can  properly  be  subjected  to  mar- 
tial law  has  been  seriously  doubted.  See 
the  opinion  of  Mr.  Hargrave,  in  Uowe's 
Reports,  p.  xliv.  In  the  more  limited  view 
of  its  extent,  martial  law  applies  only  to 
military  persons,  but  reaches  all  their 
transactions,  whether  civil  or  military ; 
while  military  law  is  restricted  to  transac- 
tions relating  to  the  discipline  of  the  army. 
It  seems,  however,  to  be  generally  conced- 
ed, that  persons,  taken  in  open  rebellion 
against  the  government,  may  lawfully  be 
tried  and  punished  by  martial  law ;  so  thi^t 
the  point  principally  in  dispute  is,  whether 
persons  can  be  tried  by  that  law  for  acts 
of  rebellion  committed  long  previous  to 
their  arrest.  This  point  was  much  dis- 
cussed in  Ireland,  in  the  case  of  Cornelius 
Crogan,  who  was  condemned  and  executed 
by  the  sentence  of  a  military  court,  for 
having  been  concerned  in  the  rebellion  of 
1798,  without  having  been  taken  in  arms. 
His  offence  was  that  of  acting  as  commis- 
sary of  supplies.  See  Rowe's  Rep.  pp. 
I  -142. 

2  [*  The  Duke  of  Wellington  said, 
in  the  House  of  Lords,  on  the  1st  April, 
1851,  \a  reference  to  the  Ceylon  rebellion 
of  1849,  "  that  martial  law  was  neither 
more  nor  less  than  the  will  of  the  general 
who  commands  the  army  ;  in  fact,  martial 
law  is  no  law  at  all."  And  Earl  Grey,  on 
the  same  occasion,  said,  "  that  he  was  glad 
to  hear  what  the  noble  Duke  had  said  with 
reference  to  what  is  the  true  nature  of 
martial  law,  for  it  is  exactly  in  accordance 
with  what  I  myself  wrote  to  my  noble 
rx>rd  Torrington,  at  the  period  of  those 


transactions  in  Ceylon.  I  am  sure  I  was 
not  wrong  in  law,  for  I  had  the  advice  of 
Lord  Cottenham,  Lord  Campbell,  and  the 
attorney-general  (Sir  J.  Jervis),  and  ex- 
plained to  my  noble  friend,  that  what  is 
called  proclaiming  martial  law  is  no  law  at 
all,  but  merely  for  the  sake  of  public  safe- 
ty, in  circumstances  of  great  emergency, 
setting  aside  all  law,  and  acting  under  the 
military  power."  Finlayson  on  Martial 
Law,  Preface,  vii. ;  Pari.  Deb.  1851,  Cey- 
lon.] 

3  Where  an  officer  was  charged  with 
scandalous  and  infamous  conduct,  1st,  in 
submitting  tamely  to  imputations  upon  his 
honor,  and  2tlly,  in  attempting  to  seduce 
the  wife  of  another  officer;  and  was  ac- 
quitted iij)on  the  first  specitication,  but  was 
found  guilty  of  the  fact  in  the  second,  but 
acquitted  of  the  charge  of  "  scandalous 
and  infamous  conduct,  unbecoming  an  offi- 
cer and  a  gentleman";  the  sentence  was 
disapproved  and  set  aside,  on  the  ground 
that  the  fact  itself,  in  the  latter  specifica- 
tion, devested  of  all  connection  with  the 
discipline  of  the  army,  was  not  a  subject 
of  military  cognizanee.  Case  of  Capt. 
Gibbs,  Simmons  on  Courts  Martial,  pp. 
439-441.  But  where  the  fact  itself  in- 
volves a  breach  of  military  discipline, 
such  as  striking  an  inferior  officer,  and 
using  opprobrious  language  towards  him, 
though  the  party  is  acquitted  of  the  charge 
of  "  scandalous  and  infamous  conduct,  un- 
becoming an  officer  and  a  gentleman,"  yet 
he  may  well  he  sentenced  under  \\w.  spt'(;i- 
fication.  Case  of  Lt.  Duiikin,  Simmons, 
pp.  442,  443. 


PART  Vm.]  PRELIMINARY   OBSERVATIONS.  411 

many  others  it  is  impossible  more  precisely  to  mark  the  offence 
than  to  call  it  a  neglect  of  discipline. ^ 

§  469.  It  is  thus  apparent,  that  while  martial  law  may,  or  does, 
in  fact,  assume  cognizance  of  matters  belonging  to  civil  as  well  as 
to  criminal  jurisdiction,  military  law  has  respect  only  to  the  latter. 
The  tribunals  of  both  are  alike  bound  by  the  common  law  of  the 
land  in  regard  to  the  rules  of  evidence,  as  well  as  other  rules  of 
law ,2  so  far  as  they  are  applicable  to  the  manner  of  proceeding ; 
but  courts  martial  when  administering  the  military  law,  having 
cognizance  only  of  criminal  offences,  are  bound  by  the  rules  of 
evidence  administered  in  criminal  cases  in  the  courts  of  common 
law ;  and  therefore  ought  not  to  convict  the  prisoner  until  all  rea- 
sonable doubt  of  his  guilt  is  removed  ;  allowing  the  presumption 
of  innocence,  in  all  cases,  to  operate  in  his  favor ;  ^  whereas,  when 
taking  cognizance,  under  martial  law,  of  matters  of  merely  civil 
conduct,  such  as  the  non-payment  of  debts,  or  the  like,  they  are  at 
liberty  to  decide  according  to  the  preponderance  of  testimony  on 
either  side.*  The  obligatory  force  of  the  common  law  of  evidence 
was  solemnly  recognized  in  England,  in  the  case  of  the  mutineers 
in  the  ship  Bounty.  These  men  were  tried  by  a  court  martial  at 
Portsmouth  ;  and  there  being  no  evidence  against  one  of  the  pris- 
oners, he  was  offered  as  a  witness  on  behalf  of  another  of  them, 
who  insisted  on  the  right  to  examine  him ;  the  court,  however,  by 
advice  of  the  judge  advocate,  refused  to  permit  him  to  be  exam- 
ined, saying  that  the  practice  of  courts  martial  had  always  been 
against  it ;  and  the  prisoner  was  condemned  to  death.     But  upon 

1  2  H.  Bl.  100  ;  1  McArthur  on  Courts  the  Executive.  Martial  law  comprises  all 
Martial,  pp.  33  -  37  ;  1  Kent,  Coram.  341,  persons.  All  are  under  it  in  the  country 
note;  Wolton  v.  Gavin,  15  Jur.  329;  16  or  district  in  which  it  is  proclaimed, 
Ad.  &  El.  48,  N.  S. ;  Mills  v.  Martin,  19  whether  they  be  civil  or  military.  There 
Johns.  7,  20-22;  Smith  v.  Shaw,  12  is  no  regular  practice  laid  down  in  any 
Johns.  257.  work  on  military  law,  as   to   how  courts 

2  "  The  act  for  punishing  officers  and  martial  are  to  be  conducted,  or  power  ex- 
Boldiers  bv  martial  law  has  only  laid  down  ercised  under  martial  law ;  but,  as  a  rule, 
such  rule's  for  the  proceedings  of  courts  I  sliould  say  that  it  should  approximate  as 
martial  as  were  intended  to  differ  from  the  near  as  possible  to  the  regular  forms  and 
usual  methods,  in  the  ordinary  courts  of  course  of  justice,  and  the  usage  of  the  ser- 
law ;  it  is  therefore  natural  to  suppose  vice,  and  that  it  should  be  conducted  with 
that,'  where  the  act  is  silent,  it  should  be  as  much  humanity  as  the  occasion  may  al- 
understood  that  the  manner  of  proceeding  low,  according  to  the  conscience  and  the 
at  courts  martial  should  be  regulated  by  good  judgment  of  those  intrusted  with  its 
that  of  the  other  established  courts  of  execution."  Vide  Ev.  of  Sir  D.  Dundas, 
iudicature."  Adye  on  Courts  Martial,  Judgc-Advocate-Gcneral,  before  the  Cey- 
p.  45.  Ion  Committee,  1849 -.50.     Finlayson   on 

3  2  McArthur,  pp.  52,  54.     [*  Martial  Martial  Law,  383.] 

law  is  a  Lex  non  Scripta,   it  arises  on  a         *  Supra,  §  29  ;  Adye,  pp.  45,  48,    97  - 
paramount  necessity  to   be  judged  of  by     116. 


412  LAW   OF   EVIDENCE   IN   COURTS   MARTIAL.  [PART  VIII. 

the  sentence  being  reported  to  the  king,  execution  was  respited 
until  the  opinion  of  the  judges  was  taken;  and  they  all  reported 
against  the  legality  of  the  sentence,  on  the  ground  of  the  rejection 
of  legal  evidence,  and  the  prisoner  thereupon  was  discharged.^ 

§  470.  A  court  martial  is  a  court  of  limited  and  special  juris- 
diction. It  is  called  into  existence  by  force  of  express  statute  law, 
for  a  special  purpose,  and  to  perform  a  particular  duty ;  and  when 
the  object  of  its  creation  is  accomplished,  it  ceases  to  exist.  The 
law  presumes  nothing  in  its  favor.  He  who  seeks  to  enforce  its 
sentences,  or  to  justify  his  conduct  under  them,  must  set  forth 
affirmatively  and  clearly  all  the  facts  which  are  necessary  to  show 
that  it  was  legally  constituted,  and  that  the  subject  was  within  its 
jurisdiction.  And  if,  in  its  proceedings  or  sentence,  it  transcends 
the  limit  of  its  jurisdiction,  the  members  of  the  court,  and  its 
officer  who  executes  its  sentence,  are  trespassers,  and  as  such  are 
answerable  to  the  party  injured,  in  damages,  in  the  courts  of  com- 
mon law. 2 

§  471.  It  is  not  proposed  here  to  describe  the  course  of  practice 
and  forms  of  proceeding  in  courts  martial,  except  so  far  as  they 
may  respect  the  rules  of  evidence  ;  and  this  is  chiefly  in  the  form 
of  the  complaint  or  accusation.  These  proceedings  being  of  a 
criminal  character,  the  party  accused  is  entitled^  by  the  Constitution 
of  the  United  States,   "  to   he   informed   of  the  nature  and  cause 

1  Muspratt's  case,  2  McArthur,  158;  1  [*"  Martial  law  cannot  arise  from  a  ?Area<- 
East,  K.  312,  313.  And  see  Stratford's  en«/ invasion.  The  necessity  must  be  act- 
case.  Ibid.;  Simmons  on  Courts  Martial,  ual  and  present ;  the  invasion  real,  such  as 
pp.  485-487;  Ante,  Vol.  1,  §§  358,  363;  effectually  closes  the  courts  and  deposes 
Home  V.  Bentinck,  2  B.  &  B.  130.  See  the  civil  administration."  "  If,  in  foreif^n 
also  Capt.  Shaw's  trial,  passim.  invasion  or  civil  war,  the  courts  areactual- 

•'  Wise  V.  Withers,  3  Cranch,  331,  337  ;  ly  closed,  and  it  is  impossible  to  adminis- 

Duffield  V.  Smith,  3  S.  «Ss  R.  590;  Mills  v.  ter  criminal  justice  according  to  law,  then, 

Martin,  19  Johns.  7,  32;  Smith  v.  Shaw,  on    the   theatre   of  active   military  opera- 

12  Johns.  257,  265  ;  Brooks  v.  Adams,  11  tions,  where  war  really  prevails,  there  is  a 

Pick.  442  ;  The  State  v.  Stevens,  2  McCord,  necessity  to  furnish   a   substitute   for  the 

32.     [A  sailor  in  the  United  States  navy  civil    authority,  thus    overthrown,  to  pre- 

was  complained  of  before  a  court  martial  serve  the  safety  of  the  army  and  society; 

for  desertion.     He  was    accpiitted  of  that  and  as  no  power  is  left  but  the  military,  it 

charge,  but  found  guilty  of  an  attempt  to  is  allowed  to  govern  by  martial  rule  until 

desert,    and   sentenced    to   imprisonment,  the  laws  can  have  their  free  course;  as  ne- 

The  sentence  was  approved  by  the  Secre-  cessity  creates  the  rule,  so  it  limits  its  du- 

tary   of  the  Navy    and    executed   by    the  ration  ;  for  if  this  f/oreniment  is  continued, 

United    States    marshal    by   order  of  tiie  aj}er  the  courts  arc  reinstated,  it  is  a  gross 

President.     In  an  action  brought  against  usurjiation  of  power.      Martial   rule   can 

the  nvarshai  for  false  imprisonment,  it  was  never  exist  wliere  the  courts  are  open,  and 

held,  ihat  the  offence  was  within  the  juris-  in  the  jirojier  and  unobstructed  ex'ercise  of 

diction  of  the  court  martial,  that  the  validity  their  jurisdiction.     It  is    also  confined  to 

of  its  proceedings  in  a  case  within  its  juris-  the  locality  of  actual  war."    Davis,  J.  Ex- 

diction  could  not  be  imiuired  into  elsewhere,  jxute  Milligan  et  al..     Supreme  Court  of 

and  that  the  marshal  was  jjrotecteil  by  his  the  United  States,  Dec.  Term,  1866  ] 
warrant.      Dynes  i'.  Hoover,  20  How.  65.] 


rART  VIII.]  PRELLMINARY    OBSERVATIONS.  413 

of  the  accusation''''  against  him;  and  this,  not  in  general  terms, 
but  by  a  particular  statement  of  all  that  is  material  to  constitute 
the  offence,  set  forth  witli  reasonable  precision  and  certainty  of 
time  and  place,  and  in  the  customary  forms  of  law.  In  otlier  vvoi'ds, 
the  accusation  ought  to  be  drawn  up  with  all  the  essential  preci- 
sion, certainty,  and  distinctness  which  the  prisoner  is  entitled  to 
demand  in  an  indictment  at  common  law  ;  though  it  needs  not  to 
be  drawn  up  in  the  same  technical  forms  ;  the  same  reasons  ai)ply- 
ing  alike  in  both  cases. ^  Hence,  in  a  charge  of  mutiny^  it  is  essen- 
tial to  state  that  the  act  was  done  in  a  mutinous  or  seditious  man- 
ner;  in  a  charge  of  murder,  it  is  necessary  to  state  that  the  prison- 
er, of  his  malice  aforethought,  feloniously  murdered  the  deceased  ; 
as  is  required  in  an  indictment  for  that  crime  ;2  and  so  in  all 
other  offences  at  common  law ;  but  in  prosecutions  for  other  of- 
fences, the  practice  is  to  adopt  the  language  of  the  statute  or  arti- 
cle in  which  they  are  described,  with  a  sufficient  specification  of 
the  act  constituting  the  offence.^ 

§  472.  The  accusation,  in  courts  martial,  which  stands  in  plnce 
of  the  indictment  in  courts  of  common  law,  is  composed  of  charges 
and  specifications.  The  office  of  the  charge  is  to  indicate  the  na- 
ture of  the  offence,  and  the  article  of  war  under  which  it  falls ; 
and,  therefore,  it  generally  is  either  couched  in  the  language  of 
the  article  itself,  or  is  stated  in  general  terms,  as  a  violation  of 
such  an  article,  mentioning  its  number.  The  former  mode  is 
regarded  as  most  proper,  and,  therefore,  is  usually  pursued  ;  espe- 
cially where  the  article  includes  various  offences,  or  is  capable  of 
violations  by  various  and  different  actions.  The  latter  is  allowable 
only  where  the  article  describes  a  single  offence,  in  which  no  mis- 
take can  be  made.^  The  specification  states  the  name  and  rank  of 
the  prisoner,  the  company,  regiment,  &c.,  to  which  he  belongs,  the 
acts  which  he  committed,  and  which  are  alleged  to  constitute  the 
offence,  with  the  time  and  place  of  the  transaction  ;  and  where 
the  essence  of  the  offence  consists  in  hurting  or  injuring  the  person 
or  property  of  another,  the  name  and  description  of  the  person 
injured  should  be  stated,  if  known  ;  and  if  not,  then  it  should  be 
alleged  to  be  unknown.^     If  the  prosecutor  is  unable  precisely  to 

1  See  supra,  §  10;   Kennedy  on  Courts  *  O'Brien  on  Military  Law,  p.  2.?3. 

Martial,  pp.  31,32;  2  McArthur  on  Courts  ^  O'Brien,  p.  234;    Supni,  §§    12,    22. 

Martial,  pp.  8,  9.  The   specification,   like    a   bill    in    equity, 

^  See  supra,  §  130.  should  state  ihc  fuct  to  be  proved,  but  not 

3  2  McArthur  on    Courts    Martial,  pp.  the  evidence  by  which    the    fact    is    to    be 

8    9.  proved.  See  Whaley  v.  Norton,  1  Vern.483. 


414 


LAW   OF  EVIDENCE   IN   COURTS   MARTIAL.  [PART  VIIL 


state  the  time  and  place  of  the  offence,  he  may  charge  that  the 
fact  was  committed  at  or  near  such  a  place,  and  on  or  about  such 
a  time.  But  this  is  not  to  be  permitted,  if  it  can  possibly  be 
avoided  without  the  sacrifice  of  justice,  as  it  tends  to  deprive  the 
prisoner  of  some  advantage  in  making  his  defence.^  In  fine, 
though  courts  martial,  as  has  just  been  observed,  are  not  bound  to 
all  the  technical  formalities  of  accusation  that  prevail  in  courts  of 
law,  yet  they  are  bound  to  observe  the  essential  principles  on 
which  all  charges  and  bills  of  complaint  ought  to  be  framed,  in 
all  tribunals,  whether  civil,  criminal,  or  military ;  namely,  that 
they  be  sufficiently  specific  in  the  allegations  of  time,  place,  and 
facts,  to  enable  the  party  distinctly  to  know  what  he  is  to  answer, 
and  to  be  prepared  to  meet  it  in  proof  at  the  trial,  and  to  enable 
the  court  to  know  what  it  is  to  inquire  into  and  try,  and  what  sen- 
tence it  ought  to  render,  and  to  protect  the  prisoner  from  a  second 
trial  for  the  same  offence.^ 


1  Kennedy,  p.  32. 

-  See  Simmons  on  Courts  Martial,  p. 
151  ;  Ante,  Vol.  2,  §  7 ;  Kennedy,  p.  31  ; 
Army  Regulations,  Art.  87.  The  nature 
of  the  accusation,  in  courts  martial,  may 
more  clearly  appear  from  the  following 
urecedents :  — 

1.  On  Ai-my  Regulations,  Art.  5. 

Accusation  against  Lieutenant  A.  B.  of 

regiment  (or corps)  of  the  army 

of  the  United  States. 

Charge. 

Using  contemptuous  words  against  the 
President  of  the  United  States. 

Specification. 

For  that  Lieutenant  A.  B.  of regi- 
ment (&c.)  did  use  the  following  con- 
temptuous words  against  the  President  of 
the  United  States,  or  {if  in  conversation) 
words  of  similar  import :  namely  (here 
sjxcifi/  the  u-ords).  Said  words  being  used 
by  iiiin  in  a  conversation  {or  speech,  ad- 
dress, writiw/.  or  publication,  as  the  ca,ie  may 
be)  iield  {delivered  or  published,  f^'c.)  at  or 

near ,  on  or  about  the day  of , 

A.  D.  18 —   {or  otherwise  describe  the  publi- 
cation).    (Sec  O'Brien,  p.  296.) 

2.   On  Navy  Regulations,  Art.  13. 

Charges  and  specifications  thereof,  pre- 
ferred against  Captain  J.  S.  of  the  navy 
of  the  United  States,  by  Captain  J.  11.  of 
said  navy. 


Charge  \st. 

Treating  with  contempt  his  superior 
officer,  being  in  the  execution  of  the  duties 
of  his  oflBce. 

Specification  \st. 

For  that  the  said  Captain  J.  S.  on  or 

about  the day  of ,  in  the  year , 

being   then   in   command   of  the   United 

States   ship >  lying   in   the   harbor  of 

,  did  write  and  send  a  contemptuous 

letter  to  Captain  J.  H.,  commandant  of 
the  Navy  Yard  at ,  of  the  purport  fol- 
lowing :  to  wit. 

{Here  the  letter  is  setfi>rth.) 

Thereby  imputing  to  him  unworthy  mo- 
tives in  {here  stating  the  injurious  tendency 
and  meaning  of  the  letter).  (See  Captain 
Shaw's  Trial,  p.  4. ) 

It  has  been  said,  that  where  the  party 
is  accused  of  having  used  disrespectful  or 
insulting  language,  the  words  tliemselves 
ought  not  to  be  set  forth  in  the  specifica- 
tion, because  this  would  suggest  to  the 
prosecutor's  witnesses  the  testimony  ex- 
pected from  them,  and  bo  equivalent  to 
asking  them  leading  questions.  Sec  Ken- 
nedy, p.  33.  But  it  may  be  observed,  on 
the  other  hand,  that  to  omit  this  would 
deprive  the  prisoner  of  the  precise  infor- 
mation of  tiie  nature  of  the  accusation  to 
which  he  is  justly  entitled  in  order  to 
prepare  his  delenee.  It  is,  however,  to  be 
remembered,  that  where  the  language  is 
profane  or  ol)sccne,  the  law  does  not  re- 
quire it  to  be  precisely  stated,  but,  on  the 


PART  VIII.]  PRELIMINARY   OBSERVATIONS.  415 

§  473.  The  prisoner's  answer  to  the  accusation  may  be  by  a 
special  plea  to  the  jurisdiction  of  the  court ;  as,  for  example,  that 
it  has  been  improperly  or  illegally  detailed  ;  or,  that  it  is  not  com- 
posed of  the  requisite  number  of  officers  ;  or,  that  the  offence  is 
purely  of  civil  and  not  of  military  cognizance  ;  or,  that  he  is  not 
of  a  class  of  persons  amenable  to  its  jurisdiction.  Or,  he  may 
answer  by  a  plea  in  bar  ;  such,  for  example,  as  that  the  period  of 
time,  within  which  a  prosecution  for  the  offence  might  be  com- 
menced, has  already  elapsed ;  or,  that  he  had  once  been  legally 
tried  for  the  same  offence ;  or,  that  the  proper  authority  had  offi- 
cially engaged  that,  on  his  becoming  a  witness  for  the  government 
against  an  accomplice  for  the  same  offence,  he  should  not  be  prose- 
cuted. And  if  these  pleas  arc  overruled,  he  still  may  put  the  alle- 
gations in  issue  by  the  general  plea  of  not  guilty ;  in  the  same 
manner  as  in  criminal  courts,  on  the  trial  of  an  indictment.^ 

§  474.  The  judge  advocate^  or  some  person  deputed  to  act  in 
his  stead  for  the  occasion,  conducts  the  prosecution  in  the  name 
of  the  United  States  ;  but  he  is  required  so  far  to  consider  himself 
as  counsel  for  the  prisoner,  after  the  prisoner  has  pleaded  to  the 
accusation,  as  to  object  to  any  leading  question  to  any  of  the  wit- 
nesses, or  any  question  to  the  prisoner,  the  answer  to  which  might 
tend  to  criminate  himself.^ 

§  475.  Courts  of  inquiry,  in  England,  are  not  regulated  by  any 
statute,  nor  by  any  standing  regulation,  but  depend  on  the  will  of 
the  sovereign,  or  of  the  superior  officer  convoking  the  court,  both 
as  to  the  officers  who  may  compose  it,  and  as  to  every  particular 
of  its  constitution.  It  is  not  a  judicial  body,  but  is  rather  a  coun- 
cil ;  having  no  power  to  compel  the  attendance  of  witnesses  not  of 
the  army  or  navy,  as  the  case  may  be,  nor  to  administer  oaths  ; 
nor  is  any  issue  formed  which  it  is  competent  to  try.^  But  in  the 
American  military  and  naval  service,  these  courts  have  a  legal 
constitution  and  authority.  Military  courts  of  inquiry  may  be  or- 
dered by  the  general  or  commanding  officer,  consisting  of  one,  two, 
or  three  officers,  and  a  judge  advocate  or  other  suitable  person  as 
a  recorder,  all  of  whom  are  sworn.     They  have  the  same  powers 

contrary,  does  require  that  its  nature  be         ^  Maltby  on  Courts  Martial,  pp.  53-60  ; 

indicated  only  in   general    and   becoming  2    McArthur,    pp.    26,    27  ;    O'Brien    on 

terms.      In  other  cases,  the  injury  above  Military  Law,  pp.  247-251. 
alluded  to  by  Mr.  Kennedy  may  bo  pre-         ^  Army  Regulations,  Art.  69. 
vented,  by  omitting  to  read  the  specifica-         ^  Simmons,  pp.  95-99;    1  McArthur, 

tion  in  the  hearing  of  the  witness.     See  pp.  107-118;    Infra,  §  498. 
Simmons,  pp.  462,  46.3. 


416  LAW    OF   EVIDENCE  IN   COURTS   MARTIAL.  [PART  VIIL 

as  courts  martial  to  summon  witnesses  and  to  examine  them  on 
oath ;  and  the  parties  accused  may  cross-examine  the  witnesses.^ 
Naval  courts  of  inquiry  may  be  ordered  by  the  President  of  the 
United  States,  the  Secretary  of  the  Navy,  or  the  commander  of  a 
fleet  or  squadron  ;  and  are  constituted  and  empowered  in  the 
same  manner .2  The  proceedings  of  these  courts  are  authenticated 
by  the  signatures  of  the  president  of  the  court  and  of  the  judge 
advocate  ;  and  in  all  cases  not  capital,  nor  extending  to  the  dis- 
mission of  an  officer,  in  the  army,  nor  of  a  commissioned  or  war- 
rant officer,  in  the  navy,  they  are  admissible  in  evidence,  provided 
that  oral  testimony  of  the  facts  cannot  be  obtained.^ 

1  Army  Eegulations,  Art.  91.  »  Army  Regulations,   Art.   92;    U.    S. 

2  U.  S.  Stat.  1800,  ch.  33,  §  2,  Art.  1,     Stat.  1800,  ch.  33,  §  2,  Art.  2,  Vol.  2,  p. 
VoL  2,  p.  51.  51. 


PART  VIII.J  OF  EVIDENCE  IN   COURTS  MARTIAL.  417 


CHAPTER    II. 

OF  EVIDENCE  IN   COURTS  MARTIAL. 

[*  §  476,   Only  exceptions  to  the  common-law  rules  of  evidence  in  courts  martial  are 
those  created  by  necessity. 

477.  Evidence  in  favor  of  the  prisoner's  character  always  received,  and  particular 

instances  in  which  his  conduct  has  been  approved  may  be  shown. 

478.  Opinions  of  witnesses  more  frequently  called  for  in  military  trials  than  in  any 

others. 

479.  Prisoner  may  show  that  the  fact  was  done  by  another,  not  a  party  to  the  trial. 

480.  Sufficient  if  the  substance  of  the  issue  be  proved. 

481.  Allegations  of  time  and  place  need  not  be  strictly  proved,  unless  to  maintain 

jurisdiction. 

482.  Rule  requiring  best  evidence  same  as  at  common  law. 

483.  Exceptions  same  as  at  common  law.     Illustrations. 

484.  Common-law  rules  of  presumption  applied. 

485.  Common-law  power  to  compel  attendance  of  witnesses.     Practice. 

486.  Witnesses  must  be  sworn,  but  the  manner  may  admit  of  question. 

487.  Rules  as  to  competency  of  witnesses  same  as  at  common  law. 

488.  Disqualification  of  witness  proved  as  in  other  courts.     Desertion  not  in  legal 

estimation  an  infamous  crime. 

489.  Practice  as  to  fellow-prisoners  testifying  for  each  other,  where  several  are 

joined  in  the  same  prosecution. 

490.  Witnesses  are  examined  in  open  court,  with  few  exceptions. 

491.  And  ordinarily  apart  from  one  another,  but  subject  to  the  discretion  of  the 

court. 

492.  Practice  as  to  taking  down  testimony. 

493.  Modern  opinion  that  the  court  has  no  power  to  call  witnesses  of  its  own 

accord,  not  called  by  either  party. 

494.  Order  of  examination  generally  same  as  at  common  law. 

495.  Depositions  only  admissible  by  statute. 

496.  Deposition  informally  taken  may  be  read  to  contradict  witness. 

497.  Rules  of  common  law  as  to  inspection,  proof,  &c.,  of  records  and  private 

writings  generally  applicable. 

498.  Report  of  a  court  of  inquiry  how  far  a  privileged  communication  and  inad- 

missible. 

499.  Records  of  courts  martial  proved  like  other  judicial  records.     General  orders 

of  the  President,  Secretaries  of  War  and  Navy,  and  articles  of  war  judir 
cially  noticed. 

500.  Writings  and  documents  admitted  in  evidence,  how  recorded. 

501.  Letters  in  favor  of  prisoner's  character  may  be  embodied  in  proceedings  of  the 

court.] 
VOL.  III.  27 


418  LAW   OF  EVroENCE  IN   COURTS  MARTIAL.  [PART  VIIL 

1.    GENERAL   RULES. 

§  476.  It  lias  already  been  intimated,  that  courts  martial  are 
bound,  in  general,  to  observe  the  rules  of  the  law  of  evidence  by 
which  the  courts  of  criminal  jurisdiction  are  governed.  The  only 
exceptions  which  are  permitted  are  those  which  are  of  necessity 
created  by  the  nature  of  the  service,  and  by  the  constitution  of  the 
court,  and  its  course  of  proceeding.  Thus,  the  rule  respecting  the 
relevancy  of  evidence^  prohibits  the  court  martial  from  receiving 
any  evidence  of  matters  not  put  in  issue  by  the  charge,  or  which 
would  implicate  the  prisoner  in  a  new  and  distinct  offence,  or  in  a 
degree  or  extent  of  guilt  not  appearing  in  the  charge  on  which  he 
is  arraigned.2  This  rule,  however,  does  not  forbid  inquiry  into 
circumstances  which,  though  collateral,  and  not  mentioned  in  the 
specifications,  yet  have  a  direct  bearing  on  the  matter  charged ; 
as,  for  example,  on  a  charge  of  larceny  of  specified  goods,  the  fact 
that  other  goods,  stolen  at  the  same  time  and  from  the  same  place, 
were  found  in  the  prisoner's  possession,  unaccounted  for,  may  be 
shown,  for  the  purpose  of  identifying  the  prisoner  as  the  person 
who  stole  the  missing  goods.^  So,  also,  on  a  charge  of  desertion, 
the  essence  of  which  depends  on  the  intention  not  to  return,  evi- 
dence is  admissible  that  the  prisoner,  on  the  night  of  his  depart- 
ure, committed  a  highway  robbery,  for  which  he  had  been  tried 
and  convicted.*  The  circumstances  of  the  robbery  might  be  irrel- 
evant ;  but  the  fact  of  the  crime,  proved  by  the  record  of  his  con- 
viction, would  warrant  the  inference  that  he  did  not  intend  to  re- 
turn. On  the  same  principle,  on  a  charge  of  using  contemptuous, 
disrespectful,  or  unbecoming  language  towards  his  commanding 
officer  at  a  stated  time,  or  in  a  particular  letter,  evidence  that  the 
accused  at  other  times  used  similar  language  on  the  same  sub- 
ject, is  admissible,  in  proof  of  his  intent  and  meaning  in  the  lan- 
guage specified  in  the  accusation.^ 

§  477.  In  regard  to  the  admissibility  oi  evidence  of  the  prisoner's 
character,  when  offered  by  himself,  courts  martial  do  not  appear  to 
have  felt  any  of  the  doubts  which  criminal  courts  have  sometimes 
entertained  ;  but,  on  the  contrary,  it  has  ever  been  their  practice, 
confirmed  by  a  general  order,  to  admit  evidence  in  favor  of  the 
prisoner's  character,  immediately  after  the  production  of  his  own 

1  Ante,  Vol.  1,  §  50.  *  Ibid. 

2  Simmons,  p.  420 ;  Kennedy,  p.  52.  ^  Simmons,  p.  42.3  ;  Supra,  §  168.     And 
8  Simmons,  p.  422.     And  see  ante,  VoL     see  ante,  Vol.  2,  §  418. 

1,  §§  52,  53. 


PART  Vni.]  OF   EVIDENCE  IN   COURTS   MARTIAL.  419 

proofs  to  meet  the  charge,  whatever  may  be  its  nature ;  and  even 
to  permit  him  to  give  in  evidence  particular  instances  in  which 
his  conduct  has  been  publicly  approved  by  his  superiors.  But  the 
prosecutor  has  no  right  to  impeach  the  prisoner's  character  by  evi- 
dence, unless  by  way  of  rebutting  the  evidence  already  adduced 
by  the  prisoner  himself;^  much  less  will  the  prosecutor  be  per- 
mitted to  give  evidence  in  chief,  as  to  the  prisoner's  general  habits 
of  life,  in  order  to  show  that  he  has  a  general  disposition  to  commit 
offences  of  the  kind  of  which  he  is  accused.  The  prisoner,  on  the 
other  hand,  may  always  meet  the  charge  by  evidence  of  his  own 
habits  of  life  and  traits  of  character,  of  a  nature  opposed  to  the 
commission  of  any  offence  of  that  kind  ;  as,  for  example,  in  answer 
to  a  charge  implicating  his  courage,  he  may  prove  his  character 
for  personal  bravery  and  resolution. 

§  478.  The  opinions  of  witnesses  are  perhaps  more  frequently 
called  for  in  military  trials  than  in  any  others  ;  but  the  rule  which 
governs  their  admissibility  is  the  same  here  as  elsewhere,  and  has 
already  been  stated  in  a  preceding  volume.^  But  it  is  proper  here 
to  add,  that  where  the  manner  of  the  act  or  of  the  language  with 
which  the  prisoner  is  charged  is  essential  to  the  offence,  as,  wheth- 
er the  act  was  menacing  and  insulting,  or  cowardly  or  unskilful, 
or  not,  or  whether  the  language  was  abusive,  or  sarcastic,  or  play- 
ful, the  opinion  which  the  witness  formed  at  the  time,  or  the  im- 
pression it  then  made  upon  his  mind,  being  contemporaneous  with 
the  fact,  and  partaking  of  the  res  gestce,  is  not  only  admissible,  but 
is  a  fact  in  the  case  which  he  is  bound  to  testify.  But  in  cases  of 
military  science,  affecting  the  prisoner,  and  depending  on  a  com- 
bination of  facts  which  are  already  in  testimony  before  the  court, 
and  upon  which  every  member  of  the  court  is  competent,  as  a  mil- 
itary officer,  to  form  an  opinion  for  himself,  it  is  deemed  hardly 
proper  to  call  upon  a  witness  to  state  his  opinion,  nor  is  he  bound 
to  give  it  if  called  for.^  It  is,  however,  perfectly  proper  to  put 
questions  involving  opinion,  to  an  engineer,  as  to  the  progress  of 
an  attack,  or  to  an  artillery  officer,  as  to  the  probable  effect  of  his 
arm,  if  directed  in  a  certain  assumed  manner ;  such  questions, 
though  belonging  to  military  science,  not  being  presumedly  within 
the  knowledge  of  every  member  of  a  court  martial.* 

1  Simmons,  pp.  427  -  429  ;  Kennedy,  *  See  Admiral  Keppel's  trial,  2  Mc^ 
p.  61;  O'Brien,  p.  191.  And  see  supra,  Arthur,  pp.  13.5-146;  General  White- 
§§  25,  26;    Ajite,  Vol.  1,  §§  54,  55.  locke's  Trial,  Id.  147-154. 

2  Ante,  Vol.  1,  §§  440,  441,  576,  580,  n.  *  Simmons,  p.  433. 


420  LAW   OF   EVIDENCE   IN   COURTS   MARTIAL.  [PART  VIH. 

§  479.  Testimony  is  sometimes  admissible,  which  goes  to  im- 
plicate a  third  person  who  is  not  a  party  to  the  trial ;  as,  for  ex- 
ample, where  it  is  essential  to  the  prisoner's  own  justification  that 
he  should  show  that  the  fact  was  done  by  another,  and  not  by 
himself,  such  testimony  will  be  received,  notwithstanding  it  may 
tend  to  criminate  one  who  is  a  stranger  to  the  proceedings.^ 

§  480.  The  rule,  that  it  is  sufficient  if  the  substance  of  the  issue 
or  charge  be  proved,^  without  requiring  proof  of  its  literal  terms,  is 
also  applied  in  courts  martial  in  the  same  manner  as  at  common 
law.  Thus,  where  a  prisoner  is  charged  with  the  offence  of  deser- 
tion, and  the  proof  is  merely  that  he  was  absent  without  leave  ; 
the  latter  fact  is  the  substance  of  the  issue,  constituting  in  itself 
an  offence  sufficient  to  warrant  a  conviction ;  the  motive  and  de- 
sign, which  raise  it  to  the  crime  of  desertion,  being  only  concomi- 
tants of  the  act.  So,  on  a  charge  of  offering  violence  to  a  superior 
officer,  by  discharging  a  loaded  musket  at  him  while  in  the  execu- 
tion of  his  office  ;  the  prisoner  may  be  convicted  and  punished  on 
proof  of  the  fact  of  violence,  though  it  be  not  proved  that  he  had 
any  knowledge  of  the  rank  or  authority  of  the  officer ;  the  princi- 
pal fact  being  the  violence  offered,  and  the  rank  and  authority  of 
the  officer  being  circumstances  of  aggravation.  So,  also,  where 
an  officer  is  charged  with  behaving  in  a  scandalous  and  infamous 
manner,  unbecoming  the  character  of  an  officer  and  a  gentleman  ; 
and  the  facts  specified  and  proved  do  of  themselves  constitute  a 
breach  of  military  discipline  and  good  order,  but  the  charge  of 
scandalous  and  ungentlemanly  conduct  is  not  supported  by  the 
evidence ;  yet  enough  is  proved  to  justify  a  conviction  and  sen- 
tence for  the  minor  offence  involved  in  the  specification.^  But  if 
the  facts  stated  in  the  specification  do  not  of  themselves  consti- 
tute a  breach  of  discipline,  or  fall  within  military  cognizance,  and 
the  imputation  of  scandalous  and  ungentlemanly  conduct  is  not 
proved,  the  prisoner  must  be  acquitted.* 

§  481.  The  allegations  of  time  and  place  generally  need  not  to 
be  strictly  proved.  But  if  the  jurisdiction  of  the  court  is  limited 
to  a  particular  territory,  the  offence  must  be  alleged  and  proved 
to  have  been  committed  within  that  territory  ;  and  the  like  strict- 
ness of  allegation  and  proof  is  necessary,  where  the  prosecution  is 

1  Kennedy,  p.  63.  kin's  case,  Simmons,  p.  442  ;  Supra,  §  468, 

2  ^«<fi,  Vol.  1,§56.  note. 

8  Simmons,  pp.  437,  438,  443.  And  *  Captain  Gibb  s  case,  Simmons,  p. 
sec  Army  Ktguiations,  Art.  83  ;  Lt.  Dun-     439. 


PART  VIII.]  OF   EVIDENCE   IN   COURTS   MARTIAL.  421 

limited  within  a  particular  period  of  time  after  the  oifenco  was 
committed.^  The  usual  allegation  as  to  time  is  "on  or  about" 
such  a  day  ;  but  where  the  offence  is  alleged  to  have  been  com- 
mitted on  a  precisely  specified  day,  and  is  proved  to  have  been 
committed  on  another  and  different  day,  it  is  said  to  be  in  strict- 
ness the  duty  of  the  court  to  specify,  in  their  finding,  the  precise 
day  proved. 2 

§  482.  The  rule,  also,  requiring  the  best  evidence  of  which  the 
ease,  in  its  nature,  is  susceptible,  is  the  same  in  military  law  as  at 
common  law.^  In  the  administration  of  this  rule,  a  clear  distinc- 
tion is  to  be  observed  between  the  best  possible  evidence,  and 
the  strongest  possible  assurance.  The  rule  merely  requires  the 
production  of  such  evidence  as  is  primary  in  its  nature,  and  not 
secondary  or  substitutionary.  Hence  it  demands  the  production 
of  original  documents,  if  they  exist  and  can  possibly  be  obtained, 
rather  than  copies  or  extracts.  But  it  does  not  insist  on  an  accu- 
mulation of  testimony,  where  the  fact  is  already  proved  by  one 
credible  witness.  In  cases  of  necessity,  it  admits  the  prosecutor 
as  a  competent  witness.  Thus,  if  an  inferior  officer  is  prosecuted 
by  his  superior,  on  a  charge  of  insulting  him  when  alone,  by  oppro- 
brious and  abusive  language,  the  prosecutor  is  a  competent  and 
sufficient  witness,  to  support  the  charge.* 

§  483.  Courts  martial  also  admit  exceptions  to  this  rule,  similar 
to  those  admitted  at  common  law.  Thus,  on  the  trial  of  an  officer 
or  soldier  for  disobedience  of  the  orders  of  his  superior,  it  is  not, 
in  general,  necessary  to  produce  the  commission  of  the  superior 
officer  in  order  to  prove  his  official  character  and  rank  ;  but  evi- 
dence tliat  he  had  publicly  acted  and  been  recognized  and  obeyed 
as  an  officer  of  the  alleged  grade,  and  that  tliis  was  known  to  the 
accused,  will  be  sufficient,  primd  facie,  to  establish  that  fact.  So, 
on  a  charge  of  desertion  or  other  offence  against  military  discipline, 
it  will  be  sufficient  to  prove  that  tlie  accused  received  the  pay,  or 
did  tlie  duties  of  a  soldier,  without  other  proof  of  his  enlistment  or 
oath.  And  where  an  officer  is  charged  with  a  breach  of  the  })ar- 
ticular  duty  of  his  office,  proof  that  he  had  acted  in  that  charac- 
ter will  be  sufficient,  without  proving  his  commission  or  appoint- 
ment.^ 

1  See  ante,  Vol.  1,  §§  56,  61,  62.  103,  10+;  Id.  App.  No.  17  ;    Case  of  Va.y- 

2  Simmons,  pp.  444,  445,  note.  m.istcr  Francis,  Simmons,  p  450. 

8  Aide,  Vol.  1,  §  82.  5  Simmons,  p.  454.     Ami  see  antp.  Vol. 

*  Lt.   Thackeray's   case,   2    McArthur,     1,  §  92;  Kex  v.  Gardner,  2  Camp.  513 


422  LAW   OF   EVIDENCE   IN   COURTS   MARTIAL.  [PART  VXH. 

§  484.  Illustrations  might  be  added  of  the  application  of  the 
common-law  rules  of  presumption,  and  of  the  other  rules  which 
govern  in  the  production  of  evidence ;  but  these  will  suffice  to 
show  the  bearing  of  the  general  doctrines  of  evidence  upon  the 
proceedings  in  courts  martial. 

2.    ATTENDANCE   OF   WITNESSES. 

§  485.  Respecting  the  power  of  courts  martial  to  procure  the  at- 
tendance of  witnesses,  it  is  to  be  observed,  that  these  courts,  like  all 
others  which  are  intrusted  with  power  definitively  to  hear  and  de- 
termine any  matter,  have  inherent  power,  by  the  common  law,  to 
call  for  all  adequate  proofs  of  the  matters  in  issue,  and  of  course 
may  compel  the  attendance  of  witnesses.^  The  summonses,  both 
on  the  part  of  the  prosecution,  and  on  the  part  of  the  prisoner,  are 
issued  by  the  judge  advocate,  and  are  served  by  the  provost  mar- 
shal or  his  deputy,  or  by  a  non-commissioned  officer  appointed  to 
that  duty.^  If  the  witness  is  an  officer,  he  may  be  summoned  by 
a  letter  of  request  from  the  judge  advocate ;  and  if  he  is  a  sol- 
dier, a  letter  is  addressed  to  his  commanding  officer,  requesting 
him  to  order  the  soldier's  attendance.  Persons  not  belonging  to 
the  army  or  navy,  as  the  case  may  be,  are  summoned  by  a  sub- 
poena. If  the  court  was  called  by  an  order,  and  all  witnesses  were 
therein  required  to  attend,  a  failure  on  the  part  of  a  military  wit- 
ness, to  attend,  when  summoned,  it  is  said,  would  subject  him  to 
arrest  and  trial  for  disobedience  of  orders.^  But  irrespective  of 
such  express  order  to  attend,  it  is  conceived  that  a  neglect  to  at- 
tend, without  a  sufficient  cause,  would  subject  a  military  person 
to  arrest  and  trial  for  a  breach  of  discipline,^  and  any  person  to 
attachment  and  punishment  for  a  contempt  of  court.^  The  pro- 
duction of  writings,  in  the  possession  of  a  party  or  a  witness,  is 
obtained  in  the  same  manner  as  in  civil  cases.^ 

§  486.  All  witnesses  in  courts  martial,  and  courts  of  inquiry, 
whether  military  or  naval,  must  be  sworn  ;  but  the  manner  of  the 
oath  may  admit  of  some  question.     In  the  Navy  Regulations  it  is 

1  Ante,  Vol.  1,  §  309.  *  Kennedy,  p.  83. 

2  2  Me  Arthur,  p.  17.  Courts  of  inquiry  ^  In  the  Navy  Kcgulations,  this  power 
have  the  siime  power  to  summon  witnesses  is  expressly  given  ;  but  it  is  an  inherent 
as  courts  martial  have,  and  to  examine  power  in  every  court,  authorized  to  sum- 
them  on  oath.  Arjuy  Rci^ulations,  Art.  mon  witnesses  before  it.  Sec  U.  S.  Stat. 
91  ;  Navv  Rei^ulations,  U.S.  Stat.  1800,  1800,  ch.  33,  §  1,  Art.  37  ;  Id.  §  2.  Art.  1, 
ch.  33,  §2,  Art.  1,  Vol.  2,  p.  51.  Vol.  2,  pp.  50,  51. 

3  Simmons,  p.  192.  «  Ante,  Vol.  1,  §§  309,  558-564. 


PART  VIII.]  OF  EVIDENCE  IN   COURTS   MARTIAL.  423 

only  required,  m  general  terms,  that  "  all  testimony  given  to  a 
general  court  martial  shall  be  on  oath  or  affirmation,"  without 
prescribing  its  form  ;i  but  in  the  Army  Regulations,^  though  it  is 
required  that  "  all  persons  who  give  evidence  before  a  court  mar- 
tial are  to  be  examined  on  oath  or  affirmation,^^  yet  the  article 
proceeds  to  add,  —  "in  the  following  form,"  —  "You  swear,  or 
affirm  (as  the  case  may  be),  the  evidence  you  shall  give,  in  the 
case  now  in  hearing,  shall  be  the  truth,  the  whole  truth,  and  noth- 
ing but  the  truth.  So  help  you  God."  The  concluding  part  of 
this  formula  is  that  to  which  persons,  who  are  conscientiously  op- 
posed to  taking  an  oath  most  strenuously  object ;  and  the  ques- 
tion has  arisen,  whether  this  form  is  imperatively  required  to  be 
used  in  all  cases,  to  the  exclusion  of  that  which  is  administered  in 
the  civil  tribunals  to  persons  conscientiously  scrupulous  of  taking 
an  oath.  In  a  parallel  case  in  the  English  service,  it  has  teen 
said  that  this  form,  without  deviation,  was  to  be  observed  in  the 
examination  of  military  witnesses,  with  reference  to  whom  it  was 
imperative ;  but  that,  with  respect  to  persons  not  controllable  by 
the  article  of  war,  the  form  might  be  varied,  to  meet  their  peculiar 
views  of  religious  duty.^ 

3.    COMPETENCY   OF   WITNESSES. 

§  487.  The  rules  in  regard  to  the  competency  of  witnesses  are 
the  same  in  courts  martial  as  in  the  courts  of  the  common  law. 
Hence,  as  we  have  seen,*  the  prosecutor  is  admissible  as  a  witness ; 
as  also  are  the  members  of  the  court.  But  it  is  to  be  observed  that 
the  court  cannot  receive,  in  private,  any  communication  in  the 
nature  of  testimony  from  one  of  its  members ;  neither  ought  his 
private  knowledge  of  any  fact,  not  testified  by  him  as  a. witness,  to 
influence  his  decision  in  the  cause ;  but  if  he  knows  any  fact  ma- 
terial to  the  issue,  he  is  bound  to  disclose  it  to  the  parties  or  to 
the  court,  that  he  may  be  called  and  sworn  as  a  witness.^  He  is 
not  thereby  disqualified  from  resuming  his  seat  as  a  member  of 
the  court ;   but  where  there  is  a  sufficient  number  of  members, 

1  U.  S.  Stat.  1800,  ch.  33,  §  I,  Art.  37,  merely  intended  to  insure   uniformity  in 

Vol.  2,  p.  50.  the  form   adopted,  when  not   at  variance 

^  Army  Regulations,  Art.  73.  with  the  established  religious  principles  of 

3  Simmons,  p.  208.     This  author's  own  any  sect  to  which  the  witness  may  profess 

opinion,    stated    in    a   note,    seems    much  to  belong. 

more  consistent  with  tlic  general  policy  of  *  Supra,  §  482  ;  2  McArthur,  105,  106. 

the  law,  and  with  sound  principles  of  con-  ^  Simmons,  p.  466  ;  2  McArthur,  p.  86 ; 

struction;    namely,   that   the   article  was  Maltby,  p.  48  ;  Adye,  p.  57. 


424  LAW   OF   EVIDENCE   IN   COURTS   MARTIAL.  [PART  VHL 

without  him,  to  constitute  the  court,  it  is  more  in  accordance  with 
the  usage  in  civil  courts  that  he  should  withdraw.^ 

§  488.  Persons  incompetent  as  witnesses  at  common  law  by  rea- 
son of  deficiency  of  understanding,  insensibility  to  the  obligations 
of  an  oath,  direct  pecuniary  interest  in  the  matter  in  controversy, 
infamy,  or  for  other  causes, ^  are  for  the  same  reasons  incompetent 
to  testify  in  courts  martial.  And  the  mode  of  proof  of  these  dis- 
qualifications is  in  all  courts  the  same.  In  regard  to  infamy  aris- 
ing from  conviction  and  sentence  by  a  court  martial,  the  prisoner 
is  never  thereby  disqualified  until  the  sentence  has  been  approved 
by  the  superior  authority,  where  such  approval  is  required ;  nor 
is  he  then  disqualified,  unless  the  crime  itself  is,  in  legal  estima- 
tion, an  infamous  crime.^  The  crime  of  desertion  is  not  an  offence 
of  this  description  ;  and  of  course  a  conviction  for  it  does  not  ren- 
der "the  party  legally  incompetent  to  testify,  however  it  may  affect 
the  credibility  of  his  testimony.'* 

§  489.  As  to  the  competency  of  fellow-prisoners,  as  witnesses  for 
each  other,  where  several  are  joined  in  the  same  prosecution,  though 
the  general  principle  is  the  same  in  courts  martial  as  it  has,  in  a 
preceding  volume,^  been  stated  to  be  in  suits  at  law  ;  yet  there  is 
a  diversity  in  its  application,  arising  from  a  diversity  in  the  con- 
stitution of  the  courts.  It  is  clear  that,  in  such  cases,  in  the  com- 
mon-law courts,  where  against  one  or  more  of  the  prisoners  there 
has  been  no  evidence,  or  not  sufficient  evidence  to  warrant  a  con- 
viction, a  verdict  and  judgment  of  acquittal  may  immediately  be 
rendered,  at  the  request  of  the  others,  and  the  person  acquitted 
may  then  be  called  as  a  witness  for  them.  But  the  regular  course 
for  a  prisoner  to  adopt  in  that  case,  in  a  court  martial,  would  be, 
on  the  receipt  of  the  copy  of  the  charges,  to  apply  to  the  authority 
that  appointed  the  court,  urging  the  necessity  of  a  separate  trial ; 
and  if  this  is  not  granted,  an  application  to  the  court  is  still  open 
to  the  prisoner ;  and  the  court  may  proceed  to  a  sentence  of  ac- 
quittal of  the  party  not  proved  to  be  guilty,  and  whose  testimony 
is  desired,  and  adjourn  any  further  proceeding,  until  sufficient 
time  is  afforded  for  this  sentence  to  be  confirmed.^  But  no  good 
reason  is  perceived  against  admitting  the  acquitted  party  as  a  wit- 


1  Simmons,  p.  224.  6  y(„,^   VoL  1,  §§  .3.57-3.59,  363. 

*  Ante,  Vol.  1,  §§  327-4.30.  ^  SinunonS,    p.    485;     Muspratt's   case, 
8  .^n/e.  Vol.  1,  §§  372-376.  2    Mc Arthur,   p.    158.      And    sec    Adye, 

*  Simmons,  p.  481.  p.  57. 


PART  Vni.]  OF   EVIDENCE  IN   COURTS   MARTIAL.  425 

ness  for  the  others,  immediately  upon  his  acquittal  by  the  court 
martial,  without  waiting  for  a  confirmation  of  the  sentence. 

4.    EXAMINATION    OF   WITNESSES. 

§  490.  Witnesses  in  courts  martial  are  invariably  examined  in 
open  court,  in  presence  of  the  parties,  except  in  those  cases  where 
depositions  are  by  law  admissible,  when  taken  pursuant  to  the 
Regulations.  It  is  not  competent  for  the  court  to  examine  a  wit- 
ness by  a  deputation  of  some  of  its  members  for  that  purpose ; 
though  under  peculiar  circumstances,  and  in  the  inability  of  an 
important  witness  to  attend  at  the  place  appointed  for  the  court  to 
assemble,  the  court,  with  the  permission  or  by  the  order  of  the  au- 
thority convening  it,  may  assemble  at  the  quarters  or  residence  of 
the  witness.^ 

§  491.  In  the  ordinary  practice  of  the  court,  the  witnesses  are 
examined  apart  from  each  other,  no  witness  being  allowed  to  be 
present  during  the  examination  of  another  who  is  called  before 
him.  But  this  rule  is  not  inflexible ;  it  is,  in  modern  practice, 
subject  to  the  discretion  of  the  court.  Nor  is  it  ever  so  rigidly 
observed  as  to  exclude  the  testimony  of  a  person  who  has  inad- 
vertently been  present  at  the  examination  of  other  witnesses.^ 
The  judge  advocate  and  the  prosecutor  being  necessarily  present 
during  the  whole  trial,  ought,  if  witnesses,  to  be  sworn  immedi- 
ately after  the  case  is  opened  on  the  part  of  the  prosecution  ;  nor 
is  it  deemed  proper,  at  any  subsequent  stage  of  the  proceedings, 
to  examine  them  in  chief,  unless  when  they  are  called  as  witnesses 
for  the  prisoner,^  The  court,  however,  in  proper  cases,  and  in  its 
discretion,  will  confront  any  two  or  more  witnesses  whose  testimo- 
ny is  contradictory  ;  by  recalling  them  after  the  close  of  the  cross- 
examinations,  that  opportunity  may  be  afforded  to  explain  and 
reconcile  their  respective  statements,  and  to  discover  the  truth  of 
the  fact.* 

§  492.  All  evidence,  orally  given  in  courts  martial,  is  taken  down 
in  writing  by  the  judge  advocate,  and  recorded  on  the  proceed- 
ings, in  the  words  of  the  witness,  as  nearly  as  may  be,  and  in  the 
order  in  which  it  is  received  by  the  court.     A  question,  being  re- 

1  Simmons,  pp.  461,  462  ;  Adye,  p.  115.         3  Simmons,  pp.  464,  465  ;  2  McArthur, 

2  2  McArthur,   p.  33 ;  Maltby,  p.    65  ;     p.  105. 

Simmons,  p.  465  ;  Kennedy,  p.  85.     And         *  Simmons,  p.  468  ;  Kennedy,  p.  85. 
see  ante,  Vol.  1,  §  432  ;  O'Jirien,  p.  203. 


426  LAW   OF  EVIDENCE  IN   COURTS  MARTIAL.  [PART  YITL 

diiced  to  writing  by  the  person  propounding  it,  whether  it  be  the 
prosecutor,  the  prisoner,  or  a  member  of  the  court,  is  handed  to 
the  president,  and  if  approved  by  him,  it  is  read  aloud  and  en- 
tered by  the  judge  advocate  on  the  proceedings ;  after  which,  if 
no  objection  to  it  is  sustained,  it  is  addressed  to  the  witness.  If  it 
is  objected  to  by  a  single  member  only,  of  the  court,  the  party 
propounding  it  is  entitled  to  the  collective  opinion  of  the  whole 
court  as  to  its  admissibility.  And  if  the  question  is  rejected  by 
the  court,  the  question  and  its  rejection,  are  still  entered  of  record 
with  the  proceedings.  If  a  witness  wishes  at  any  time  before  the 
close  of  all  tlie  testimony  to  correct  or  retract  any  part  of  his  evi- 
dence, in  which  he  has  been  mistaken,  he  will  be  allowed  to  do 
so ;  but  this  must  be  done  by  an  addition  to  what  he  has  before 
stated,  and  7iot  hy  ivay  of  erasure  or  obliteration ;  it  being  impor- 
tant, in  all  cases,  that  the  superior  authority,  which  reviews  the 
evidence,  should  have  an  accurate,  and,  as  it  were,  a  dramatic 
view  of  all  that  transpired  at  the  trial. ^ 

§  493.  Whether  a  court  martial  has  a  right,  of  its  own  accord, 
to  call  loitnesses  before  it  who  are  not  adduced  by  either  of  the  par- 
ties, is  a  point  which  has  frequently  been  agitated,  and  upon  which 
opposite  opinions  have  been  held,  the  more  modern  being  in  the 
negative.^  It  is  at  least  highly  inexpedient,  in  ordinary  cases, 
that  the  court  should  thus  interfere  with  the  course  of  the  trial ; 
since  the  necessity  of  it  may  always  be  avoided  by  suggesting  the 
name  of  the  witness  to  one  or  the  other  of  the  parties,  whose  in 
terest  might  induce  them  to  summons  him.  And  in  regard  to 
questions  directly  propounded  by  the  court,  though  its  right  to  do 
so  cannot  be  denied,  yet  the  exercise  of  the  right  certainly  does, 
in  effect,  prevent  either  party  from  objecting  to  the  legal  propriety 
of  the  question ;  for  this  has  been  prejudged  by  the  member  pro- 
pounding it.  If  the  question  is  perfectly  clear  of  doubt,  as  to  its 
admissibility,  there  can  no  mischief  result  from  its  being  put  by 
the  court. 

§  494.  The  order  and  course  of  the  examination  of  witnesses  in 
courts  martial,  and  of  their  cross-examination  and  re-exaraination, 
are  the  same,  in  general,  as  has  been  stated  in  trials  at  law.^ 


1  Mallbv,  pp.  44,  65,  66  ;  2  McArthur,  p.  467  ;  O'Brien,  p.    2.59 ;  Kennedy,   pp. 
pp.  44,  4.5';    Simmons,  p.  472;    O'Brien,  132-143. 

p.  285 ;  Kennedy,  p.  105.  3  ^nte,  Vol,  1,  §§  431  -469. 

2  See   2   McArthur,  p.  107 ;  Simmons, 


PART  Vm.]  OF   EVIDENCE  IN   COURTS   MARTIAL.  427 

5.    DEPOSITIONS. 

§  495.  By  the  general  principles  of  military  law,  depositions  are 
not  admissible  in  evidence.  It  is  only  in  those  cases  of  crime, 
where,  by  statutes,  they  are  made  admissible  on  the  trial  of  indict- 
ments, that  courts  martial,  in  the  English  service,  have  admitted 
them.i  But  in  the  American  service,  it  is  specially  ordered,  that, 
"  on  the  trial  of  cases  not  capital,  before  courts  martial,  the  depo- 
sitions of  witnesses,  not  in  the  line  or  staff  of  the  army,  may  be 
taken  before  some  justice  of  the  peace,  and  read  in  evidence ; 
provided  the  prosecutor  and  the  person  accused  are  present  at  the 
taking  the  same,  or  are  duly  notified  thereof."  ^  This  regulation, 
being  a  statutory  exception  to  the  general  rule  which  excludes 
depositions,  must  be  confined  to  the  cases  expressly  mentioned, 
namely,  to  cases  not  capital,  and  to  persons  not  in  the  line  or 
staff  of  the  army.  In  capital  cases,  and  with  respect  to  persons 
belonging  to  the  line  or  staff,  the  admissibility  of  depositions  is 
governed  by  the  general  rule. 

§  496.  Depositions,  when  taken  pursuant  to  the  above  regulation., 
it  is  conceived,  ought  to  be  taken  in  the  manner  and  for  the  causes 
stated  in  the  acts  of  Congress  on  that  subject ;  which,  as  they  have 
been  sufficiently  stated  in  a  preceding  volume,^  it  is  not  necessary 
here  to  repeat.  It  may,  however,  be  added,  that  though  a  deposi- 
tion has  been  informally  taken,  and  therefore  is  not  admissible 
under  the  statute,  it  may  still  be  read  as  a  solemn  declaration  of 
the  witness  to  contradict  or  disparage  the  testimony  he  may  have 
orally  given  in  court.  It  was  formerly  held,  that  what  a  witness 
has  been  heard  to  state  at  another  time,  may  be  given  in  evidence 
to  confirm,  as  well  as  to  contradict,  the  testimony  he  has  given  in 
court ;  *  but  this  is  not  now  admitted,  unless  where  the  witness  is 
charged  with  a  design  to  misrepresent,  arising  from  some  recently 
acquired  relation  to  the  party  or  the  cause ;  in  which  case  his  prior 
statements  may  become  material,  in  order  to  disprove  the  charge, 
by  showing  that  he  had  made  the  same  statement  before  such  re- 
lation existed.^ 

1  2  McArthur,   p.    121  ;    Simmons,  p.  335 ;  U.  S.  Stat.  1827,  ch.  4,  Vol.  4,  p. 
509.  197. 

2  Army   Regulations,    Art.    74.      And  *  Hawk,  P.  C.  b.  2,  ch.  46,  §  14  ;  2  Mc- 
see  Maltbv,  p.  65;  O'Brien,  p.  186.  Arthur,  p.  120;  Kennedy,  p.  98;  Cooke 

3  Ante,  Vol.  1,  §§  322-324.     See  U.  S.  v.  Curtis,  6  H.  &  J.  93. 

Stat.    1793,   ch.   20,   §  30,  Vol.    1,  p.  88  ;         &  Ante,  Vol.  1,  §  469;  Bull.  N.  P.  294; 
U.   S.  Stat.   1793,  ch.  22,  §  6,  Vol.  1,  p.     2  Phil.  Evid.  445,  446. 


428  LAW    OF   EVIDENCE   IN   COURTS   MARTIAL.  [PART  VDL 

6.     PUBLIC    AND   PRIVATE   "WRITINGS. 

§  497.  The  rules  already  stated  in  a  former  volume,^  in  regard 
to  the  inspection,  proof,  admissibility,  and  effect  of  public  records 
and  documents,  and  of  private  writings,  as  they  are  founded  on 
general  principles  applicable  alike  to  all  judicial  investigations, 
are  recognized  in  all  judicial  tribunals,  whether  civil,  military,  or 
criminal  ;  subject  to  a  few  exceptions  and  variations  of  adminis- 
tration, necessarily  arising  from  their  diversities  of  constitution 
and  forms  of  proceeding.  These  it  only  remains  for  us  briefly  to 
illustrate,  by  a  few  military  examples. 

§  498.  In  regard  to  public  military  records,  it  has  been  adjudged 
that  the  report  of  a  court  of  hiquiry  is  a  privileged  communication, 
and  cannot  be  called  for  without  the  consent  of  the  superior  mili- 
tary authority  which  convened  the  court ;  nor  can  an  office  copy 
of  it  be  admitted  without  such  permission.  It  stands  on  the  foo1>- 
ing  of  other  secrets  of  state,  heretofore  mentioned.^  Therefore, 
where  the  commander-in-chief  directed  a  military  inquiry  to  be 
held,  to  investigate  the  conduct  of  an  officer  in  the  army,  who 
afterwards  sued  the  president  of  that  court  for  a  libel,  alleged  to 
be  contained  in  his  report,  and  to  have  been  transmitted  to  the 
commander-in-chief;  it  was  held,  upon  the  broad  principle  of 
state  policy  and  public  convenience,  that  the  report,  being  a  mat- 
ter of  advice  and  information  given  in  the  course  of  public  duty, 
and  for  the  regulation  of  a  public  officer,  could  not  be  disclosed  to 
the  world  at  the  pleasure  of  private  persons,  in  a  private  suit, 
without  permission  from  the  superior  authority ;  and  that,  there- 
fore, in  tlie  case  at  bar,  the  evidence  was  properly  rejected. ^  In 
the  Engliiih  service,, the  proceedings  of  a  court  of  inquiry  are  held 
not  admissible  in  a  court  martial,  as  evidence  of  the  facts  detailed 
in  tlie  testimony  there  recorded  ;  and  rightly  ;  for  those  courts  in 
England  are  not  considered  as  judicial  bodies,  they  have  not  pow- 
er to  administer  oaths,  nor  any  inherent  power  to  summon  wit- 
nesses ;  and  the  right  of  the  accused  party  to  appear  or  take  any 
part  in  the  proceedings  is  questioned ;  it  being  deemed  rather  a 
council  tlian  a  court.*  But  in  the  American  service,  as  we  have 
seen,'^  courts  of  inquiry  are  established  by  law,  and  have  a  judicial 

1  Ante,  VoL  1,  §§  471-498,  557-582.  *  Simmons,  pp.  96,  98,  .50.3  ;   1    McAr- 

2  Ante,  Vol.  5,  §  251.  thur,  pj).  107  -  118 ;  Snpra,  §  475. 
8  Homo    V.    Lil.    Bcntinck,    2    Brod.   &         *  Supra,  §  475. 

Bing.  130;  Simmons,  p.  471. 


PART  VIII.]  OF   EVIDENCE "  IN   COURTS   MARTIAL.  429 

character,  with  the  same  power  with  courts  martial  to  summons 
and  examine  witnesses,  and  giving  the  accused  the  same  right  to 
cross-examine  and  interrogate  them.  Their  proceedings,  there- 
fore, are  expressly  made  admissible  in  evidence  in  courts  martial 
in  cases  not  capital,  nor  extending  to  the  dismission  of  an  officer; 
provided,  that  the  circumstances  are  such,  that  oral  testimony  can- 
not be  obtained.^ 

§  499.  The  records  of  courts  martial,  being  the  records  of  judi- 
cial tribunals  legally  constituted,  may  be  proved  and  admitted  in 
evidence,  and  have  effect,  like  all  other  judicial  records.  Cien- 
eral  orders  and  regulations,  issued  by  the  President  of  the  United 
States,  pursuant  to  law,  or  by  the  Secretary  of  War,  or  the  Secre- 
tary of  the  Navy,  within  the  scope  of  their  authority,  when  duly 
promulgated,  are  presumed  to  be  known  to  all  military  persons, 
and  therefore  will  be  taken  notice  of  by  courts  martial ;  the  print- 
ed copies  being  used  merely  to  refresh  the  memory.  The  Articles 
of  War,  both  for  the  land  and  naval  service,  being  enacted  by  Con- 
gress, are  judicially  taken  notice  of  by  all  persons,  as  other  public 
statutes.^ 

§  500.  All  writings  and  documents,  whether  public  or  private, 
which  are  admitted  in  evidence,  are  noticed  in  the  proceedings  of 
the  court ;  and  copies  of  them  should  be  embodied  in  the  proceed- 
ings in  the  order  in  which  they  are  produced  in  evidence  ;  or,  if 
voluminous,  extracts  of  so  much  as  may  bear  on  the  question  and 
is  required  by  either  party,  may  suffice.  If  their  genuineness  is 
admitted  by  the  party  against  whom  they  are  produced,  the  ad- 
mission also  should  be  recorded.  If,  instead  of  being  thus  em- 
bodied, copies  of  them  are  annexed  to  the  proceedings  as  an  ap- 
pendix, tliey  should  be  numbered,  and  lettered,  and  referred  to  in 
their  proper  place  in  the  proceedings,  and  each  copy  should  be 
authenticated  by  the  signature  of  the  judge  advocate,  or  the  pres- 
ident of  the  court.^ 

§  501.  Though  private  letters  are  not  legal  evidence  of  the  facts 
stated  in  them,  and  therefore  are  not  admissible  in  evidence  for 
that  purpose,  and  cannot  be  annexed  to  the  proceedings  of  the 
court ;  yet  the  usage  of  courts  martial  allows  an  exception  to  this 
rule,  in  regard  to  letters  in  favor  of  the  prisoner's  character ;  by 

1  Army  Regulations,   Art.    92;  U.    S.         ^  Simmons,   pp.    500-502.      And    seo 
Stat.  1800,  ch.  33,  §  2,  art.  2;  Vol.  I,  p.     ante,  Vol.  1,  §§  471  -509. 
51.  **  Simmons,  p.  508. 


430  LAW   OF  EVIDENCE  IN   COURTS  MARTIAL.  [PART  YDl. 

permitting  him  to  embody  them  in  his  defence  ;  whereby  they  be- 
come part  of  the  proceedings,  and  thus  are  brought  to  the  notice 
of  the  authority  which  revises  the  sentence,  and  receive  their  due 
weight  and  consideration.^ 

1  Kennedy,  pp.  119,  120;  Colonel  Quentin's  Trial,  p.  35. 


GENERAL    INDEX. 


GENERAL    INDEX. 


The  numerals  in  this  Index  refer  to  the  Volume;  the  figures  to  the  Sections. 


A. 

ABATEMENT, 

plea  of  alien  enemy  in,  11.  19. 

defective  or  improper  service  of  process,  20. 

misnomer,  21. 

bill  not  found  by  twelve  of  the  grand-jury,  22. 

irregularity  in  impanelling  or  summoning  grand-jury,  22,  n.  4. 

non-tenure  and  disclaimer,  23. 

want  of  parties,  24. 

in  partnership,  25. 

pendency  of  prior  suit,  26. 
judgment  in,  when  peremptory,  27. 

damages  in,  27. 
ABDUCTION, 

wife  competent  to  prove,  I.  343. 
ACCESS, 

when  presumed,  I.  27. 
ACCESSORY, 

not  a  competent  witness  for  the  principal,  I.  407. 

who  is,  III.  40. 

before  the  fact,  42,  44. 

after  the  fact,  47,  48. 

none  in  treason,  43. 

none  in  manslaughter,  43. 

none  in  misdemeanors,  43. 

countermanding  the  order,  is  absolved,  45. 

when  he  may  be  tried,  46. 

how  charged,  49. 

proof  of  the  charge,  49,  50. 

husband  andfcvife,  when  accessory  to  each  other,  48. 

none  in  treason,  245. 

VOL.  III.  28 


434  INDEX. 

ACCOMPLICES, 

when  admissible  as  witnesses,  I.  379  -  382. 
(See  Witnesses.) 
ACCORD   AND   SATISFACTION, 
substance  of  this  issue,  II.  28. 
what  is  a  good  accord  and  satisfaction,  28. 
who  is  to  judge  of  it,  28  a. 

when  admissible  under  the  general  issue,  and  when  not,  29. 

proper  parties  to,  30. 

accord  alone,  when  no  bar,  30. 

accord,  with  tender  of  satisfaction,  when  sufficient,  31. 

when  payment  and  acceptance  in  satisfaction  are  both  put  in  issue,  32. 

when  presumed  from  lapse  of  time  alone,  33. 
(See  Payment.) 
ACCOUNT, 

rendered,  effect  of,  as  an  admission,  I.  212. 

action  of,  II.  35. 

between  whom  it  lies,  35. 

pleadings  in,  36. 

privity  necessary  to  support,  37. 

material  averments  in,  37. 

evidence  under  issue  of  plene  computavit,  38. 

plea  of  ne  ungues  bailiff,  38. 

auditors  in,  39. 

auditors  in  trial  of  issues  certified  by,  39. 

judgment,  quod  computet,  effect  of,  39. 
ACCOUNT   STATED, 

what  amounts  to  proof  of.  It  127  -  129. 
ACCUSED   PARTY, 

entitled  to  precise  statement  of  his  offence,  III.  10. 

to  be  confronted  with  witnesses,  11. 
ACKNOWLEDGMENT   OF    DEBT, 

what  amounts  to,  11.  440  -  443. 

effect  of,  440,  n. 
ACQUIESCENCE, 

what  is,  so  as  to  bind  the  party,  I.  197. 
ACQUITTAL, 

record  of,  when  evidence,  I.  583. 
ACT  OF    GOD, 

what  is,  II.  219. 

when  it  excuses,  219. 
ACTS   OF   PARTIES, 

when  adrais.-ible  to  explain  writings,  I.  293,  295. 


INDEX.  435 


ACTS    OF  STATE, 
how  proved,  I.  479. 
admissible  in  prize  causes,  III.  456. 

(See  Public  Records  and  Documents.) 
ACTS, 

book  of,  when  evidence,  I.  519. 
ADJUSTMENT   OF   LOSS, 

when  and  how  far  conclusive,  I.  212. 

(See  Admissions.) 
ADMINISTRATION, 

letters  of,  how  proved,  I.  519. 
prima  facie  evidence  of  death,  550. 
foreign  effect  of,  544. 
ADMINISTRATOR, 

competency  of,  as  a  witness,  I.  347,  402. 
admissions  by,  179. 

promise  by,  when  it  must  be  in  writing,  267. 
ADMIRALTY    AND   MARITIME    COURTS, 
courts  of  and  seals,  judicially  noticed,  I.  5,  479. 
judgments,  when  and  how  far  conclusive,  525,  541. 
Jurisdiction  of,  III.  386. 
Instance  Courts,  387. 
Prize  Courts,  387. 
Instance  Causes, 

Forms  of  Proceedings  in,  388  —  401. 
by  the  Roman  law,  389  -  394. 
in  the  United  States  courts,  395-401. 
libel,  its  requisites,  395,  397. 
information,  396,  -'597. 
amendments  in,  397. 
answer  of  defendant,  398. 

of  libellant,  399. 
(iommissioners,  reference  to,  400. 
causes,  plenary,  what,  401. 
summary,  what,  401. 
Eoidence, 

1.  general  rules,  402-408. 
as  to  relevancy,  403. 
as  to  burden  of  proof,  404. 
best  evidence,  405. 
presumptions,  406,  407. 
collisions,  407. 

spoliation,  &c.  of  papers,  408. 
full  and  half  proof,  409. 


436  INDEX. 

ADMIRALTY   AND   MARITIME    COVRTS  — Continued. 

Evidence. 

2.  competency  of  witnesses,  III.  409  —  416. 

of  parties,  410-413. 
suppletory  oath,  410. 
decisory  oath,  411. 
from  necessity,  412. 
salvors,  412. 
captors,  412. 
defendant's  answer,  413. 
weight  of  answer,  413. 
interested  persons,  414. 
shipmasters,  414  a. 
seamen,  414,  415. 
joint  libellants  for  wages,  415. 
experts,  416. 

3.  documents, 

in  general,  417. 
their  kinds,  418. 
bill  of  sale,  419. 
judicial  sale,  420. 
charter-party,  421. 
bill  of  lading,  422. 
.     shipping  articles,  423. 

in  the  merchant-service,  423,  424. 

fisheries,  424. 
role  d' equipage,  426. 

rule  of  interpretation  of  seamen's  contracts,  427. 
log-book,  428. 

its  requisites,  428,  429. 

how  far  evidence,  428  -  430. 

must  be  pleaded,  431. 
sea-letter,  432. 
Mediterranean  passport,  432. 
certificate  of  property,  432. 
crew-list,  432. 
inventory,  432. 
manifest,  432. 
invoice,  432. 
certificate  of  origin,  432. 

4.  depositions, 

mode  of  taking,  433  -  435. 
affidavits,  436. 


INDEX.  437 

ADMIRALTY   AND   MARITIME    COJJBTS— Continued. 
Prize  causes, 

Pleadings  and  Practice,  III.  437  -  443. 

delivery  of  papers,  438. 

commissioners  of  prize,  439. 

monition,  440. 

libel,  441. 

claim,  442. 

condemnation,  443. 
Evidence, 

1.  in  preparatorio,  444. 

by  standing  interrogatories,  444. 

of  what  persons,  445. 

manner  of  examination,  446. 

value  of  this  testimony,  447. 

invocation  of  papers,  448. 

other  testimony,  when  admitted,  449. 

when  closed,  450. 

2.  documents, 
admissibility  of,  451. 
proof  of,  451. 

nature  and  necessity  of,  452. 
effect  of  want  of,  453. 
spoliation,  453. 

3.  competency  of  proof, 
interested  person,  454. 
enemies,  455. 
declarations  of  States,  456. 

4.  mode  of  taking  testimony,  457. 

5.  presumptions, 

of  title  and  ownership,  458,  459. 
of  assistance  in  capture,  460. 
Further  proof, 

of  enemy's  property,  461. 
when,  462. 

by  "  plea  and  proof,"  462. 
ordered  by  the  court,  463. 
allowed  to  claimant,  464. 

to  captors,  465. 
when  refused,  466. 
oral  testimony  excluded,  467. 
ADMISSIONS, 

of  contents  of  a  writing,  when  not  sufficient,  I.  96. 

distinction  between  confessio  juris  and  confessio  facti,  96,  203. 


438  INDEX. 

ABMISSIOI^S  — Continued. 

by  agents,  when  binding  on  principal,  I.  113,  114. 
what  and  when  receivable,  169,  170. 
when  allowed  in  trials  for  felony.  III.  39. 
of  signature,  II.  164,  165. 
of  seaworthiness,  401,  n. 
of  marriage,  462. 

made  by  a  party  to  the  record,  I.  171. 
party  in  interest,  172. 
one  of  joint  parties,  172. 
party  merely  nominal,  excluded,  172. 

how  avoided  if  pleaded,  173. 
one  of  several  parties,  not  receivable  unless  a  joint  interest,  174. 
rated  parishioner,  175. 
quasi  corporators,  175,  n. 

one  of  several  parties,  common  interest  not  sufficient,  unless  also 

joint,  176. 
apparently  joint,  is  prima  facie  sufficient,  177. 
answer  in  chancery  of  one  defendant,  when  receivable  against 

others,  178. 
persons  acting  iji  autre  droit,  when  receivable,  179. 

(See  Equity.) 
guardian,  &c.  binds  himself  only,  179. 
party  interested,  180. 
strangers,  when  receivable,  181. 
a  person  referred  to  by  the  party,  182. 

whether  conclusive,  184. 
wife,  when  admissible  against  husband,  185,  341,  n. 
attorney,  186. 

principal,  as  against  surety,  187,  188. 
one  in  privity  with  another,  189,  190. 
assignor,  before  assignment,  190. 
by  whom  they  may  be  proved,  191. 
time  and  circumstances  of  making  the  admission,  192. 
offer  of  compromise  is  not  an  admission,  192. 
made  under  duress,  193. 

direct  and  incidental  admissions,  same  in  effect,  194. 
implied  from  assumed  character,  language,  and  conduct,  195, 196. 

acquiescence,  when,  197. 
implied  from  possession  of  documents,  198. 

assent  to  the  verbal  statements  of  another,  199. 
verbal,  to  be  received  with  great  caution,  200. 
whole  to  be  taken  together,  201,  202. 
verbal,  receivable  only  to  facts  provable  by  parol,  96,  203. 


INDEX.  439 

ADMISSIONS  —  Continued. 

when  and  how  far  conclusive,  I.  204. 
judicial  admissions,  how  far  conclusive,  27,  186,  205,  527  a. 
means  of  compelling,  III.  308,  n. 
by  payment  into  court,  I.  205, 
if  improvidently  made,  what  remedy,  206. 
acted  upon  by  others,  when  and  how  far  conclusive,  27,  207,  208. 
not  acted  upon,  not  conclusive,  209. 
when  held  conclusive,  from  public  policy,  210,  211. 
by  receipts,  212. 
by  adjustment  of  a  loss,  212. 
by  account  rendered,  212. 
in  bill  in  equity,  212. 

(See  Equity.) 
ADULTERY, 

nature  of  the  evidence  to  establish,  II.  40. 
proved  by  evidence  of  proximate  circumstances,  41. 
general  coliabitation,  41. 

general  conduct,  creating  a  suspicio  violenta,  41. 
when  proved  by  impression  and  belief  of  witnesses,  42. 
when  continuance  of  presumed,  after  proof  of  one  act,  4^. 
of  wife,  when  birth  of  child  evidence  of,  44. 
of  husband,  acts  in  proof  of,  44. 
of  either,  Avhen  proved  by  visit  to  brothel,  44. 

by  disease,  44. 
when  proved  by  confession  of  party,  45. 

by  evidence  of  particeps  criminis,  46. 
to  what  time  the  evidence  must  relate,  47. 
when  evidence  of  acts  not  charged  is  admissible,  47. 
proof  of,  upon  indictment  for  this  crime,  48. 
when  and  what  evidence  of  marriage  is  requisite,  49,  50. 
proof  of  identity  of  parties,  when  requisite,  50. 
evidence  in  defence  of  action  for  crim.  con.,  51. 
of  collusion  between  husband  and  wufe,  51. 
of  connivance  and  connivance  defined,  51,  &  n.  3. 
of  passive  sufferance  of  husband,  51. 
under  plea  of  recrimination,  52. 

of  condonation,  53,  54. 
proof  of  damages,  55. 
proof  in  mitigation  of  damages,  56. 
letters  of  wife,  when  admissible  for  husband,  57. 
general  character  of  wife  in  issue,  58. 
(See  Seduction.) 


440  INDEX. 

ADVERSE  ENJOYMENT, 

when  it  constitutes  title,  I.  17. 
AFFIDAVIT, 

may  be  made  in  his  own  case,  by  atheist,  I.  370,  n. 
by  persons  infamous,  37.5. 
by  other  parties,  348,  349,  558. 
by  wife,  344. 

(See  Admiralty,  &c.     Equity.) 
AFFIRMATION, 

judicial,  when  substituted  for  an  oath,  I.  371. 
AFFIRMATIVE.     (See  Onus  Probandi.) 
AGE, 

proof  of,  I.  104,  116,493. 
AGENCY, 

nature,  and  definition  of,  II.  59. 
proof  of,  directly  or  indirectly,  60. 
by  deed,  when  necessary,  61. 
where  a  corporation  aggregate  is  principal,  62. 
by  writing,  when  necessary,  63. 
by  testimony  of  the  agent  himself,  63. 
by  inference  from  relative  situation,  64,  64  a. 
by  habit  and  course  of  dealing,  65,  66. 
by  possession  of  negotiable  or  other  security,  65. 
by  subsequent  ratification,  66. 
by  long  acquiescence,  67. 
effect  of  ratification,  of  tortious  act,  68. 
liability  of  principal  for  tortious  act,  68. 
revocation  of,  68  a. 
AGENT, 

when  and  how  far  his  declarations  bind  the  principal,  I.  113,  234. 
when  a  competent  witness  for  the  principal,  and  when  not,  416, 
417. 

(See  Witnesses.) 
may  prove  his  own  authority  if  parol,  416. 
when  his  authority  must  be  in  writing,  269. 
AGREEMENT.     (See  Contract.) 
ALLEGATIONS.     (See  Onus  Probandi.) 
material,  I,  51. 

exclude  collateral  facts,  52. 
what  are  collateral  facts,  53. 
when  character  is  material,  54,  55. 
descriptive,  nature  of,  56,  57,  58,  II.  12. 
formal  and  informal,  what,  I.  59. 


INDEX.  441 

ALLEGATIONS  —  Continued. 

made  descriptive  by  the  mode  of  statement,  L  GO. 

of  time,  place,  quantity,  &c.,  when  descriptive,  61,  62. 

redundant,  67. 

difference  between  these  and  redundancy  of  proof,  68. 

"  immaterial,"  "  impertinent,"  and  "  unnecessary,"  60,  n. 
ALTERATION, 

of  instruments,  what,  and  effect  of,  I.  564-568. 
distinguished  from  spoliation,  566. 
in  a  will,  when  deliberative  and  when  not,  II.  681. 
(See  Private  Writings.) 
AMBIGUITIES, 

latent  and  patent,  what,  I.  297-300. 
when  parol  evidence  admissible  to  explain,  297-  300. 
not  to  be  confounded  with  inaccuracies,  299. 
AMENDMENT, 

allowed  to  avoid  the  consequences  of  a  variance,  I.  73. 

in  admiralty  proceedings,  III.  397. 
of  record,  when  allowed,  II.  11. 
of  process,  in  the  names  of  parties,  11  a. 
of  pleadings,  1\  b. 

under  recent  English  statutes,  11  c,  d. 
when  not  allowed,  lie. 
ANCIENT   WRITINGS, 

when  admissible  without  proof  of  execution,  I.  21,  142-144,  570. 
ANSWER, 

of  one  defendant  in  chancery,  when  admissible  against  the  others,  I. 

178. 
what  amount  of  evidence  necessary  to  disprove,  260,  261. 
admissible  for  defendant,  why,  351,  551. 
proof  of,  512. 

(See  Equity.) 
APPOINTMENT   TO   OFFICE, 

when  proved  by  acting  in  it,  I.  83  -  92,  III.  483. 
ARBITRATION   AND   AWARD, 

modes  of  the  submission,  and  remedies  thereon,  II.  69. 
remedy  by  action  of  debt,  when  preferable,  70. 
proof  of  the  submission,  71. 
when  by  parol,  72. 

of  the  authority  of  the  umpire,  73,  n.  6,  78,  n.  1. 
of  the  execution  of  the  award,  74. 
of  notice,  publication,  and  deliveiy  of  the  award,  75. 
of  demand  of  payment,  when  necessary,  76. 


442  INDEX. 

ARBITRATION    AND    AW  ART)  — Continued. 

of  performance  by  plaintiff,  II.  77. 
defences  to  an  action  upon  an  award,  78. 
arbitrators,  when  and  how  far  competent  witnesses,  78. 
proof  of  revocation  of  the  submission,  79. 
minority  of  party,  80. 
refusal  of  arbiti-ators  to  act,  80. 
evidence  under  non  assumpsit,  81. 
ARBITRATORS, 

not  bound  to  di>clo>(i  grounds  of  award,  I.  249. 
ARMORIAL   BEARINGS, 

when  evidence  of  pedigree,  I.  105,  7i. 
ARREST, 

without  process,  when  lawful.  III.  123,  n. 
exemption  from, 

(See  Witnesses.) 

ARSON, 

what,  III.  51. 

what  is  a  dwelling-house,  52. 
when  burning  of  one's  own  house  is,  53,  55. 
proof  of  ownership,  54,  57. 
actual  burning,  55. 
felonious  intent,  56. 
night-time.  57. 
burning  out-house,  57. 
ARTICLES   OF    THE    PEACE, 

by  wife  ligain.-t  the.  husband,  I,  343. 
ARTICLES    OF    WAR.     (^<^e  Acts  of  State.      Courts  Martial.) 
ASCRIPTION   OF    PAYMENTS,  IL  529 -536. 
ASSAULT   AND   BATTERY, 
of  wife,  by  husband,  I.  343. 
assault,  what,  II.  82. 

intent  material  in,  83. 
battery,  what,  84. 

intent  material  in,  85. 

or,  freedom  from  fault,  85. 
when  not  necessary  to  be  proved,  87. 
when  defence  must  be  specially  pleaded,  85. 
proof  of  time  and  place,  how  far  material,  86. 
when  plaintiff  may  waive  one  trespass  and  prove  another,  86. 
when  he  is  bound  lo  elect,  8G. 
actual  battery  needs  not  to  be  proved,  87. 
consequential  damag(fs,  when  to  be  specially  laid,  88,  89. 


INDEX.  443 

ASSAULT   AND   B ATT EUY  —  Continued. 
proof  of,  IT.  88. 

when  not  necessary  to  allege,  89. 
damages,  what  to  be  alleged,  and  what  may  be  proved  without  special 
averment,  89. 

(See  Damages.) 
confessions  and  admissions,  when  admissible,  90. 
conviction  on  indictment,  when  evidence  in  a  civil  action,  90. 
allegation  of  alia  enormia,  its  office,  91. 
defences  in,  classes  of,  and  mode  of  pleading,  92. 
evidence  under  the  general  issue,  93. 
evidence  of  intention,  when  matei'ial,  94. 
when  admissible,  94. 
necessity,  when  admissible,  94. 
evidence  under  plea  of  son  assault  demesne, 
with  replication  of  de  injuria,  95. 
with  replication  in  justification,  95. 
when  pleaded  with  the  general  issue,  95. 
replication  of  ^e  injuria,  96. 
plea  of  moderate  castigavit,  97. 

molliter  manns  imposuit,  98. 
justification  of  act  done  to  preserve  the  peace,  99,  100. 
indictment  for.  III.  58. 
what  is,  59,  60,  61. 
intent,  wljen  essential,  61. 
by  menace,  when,  61. 
accidental  violence,  when  no  assault,  62. 
lawful  correction  no  assault,  63. 
in  defence,  64. 
in  defence  of  property,  65. 
in  prevention  of  crime,  65. 
ASSIGNOR, 

admissions  by,  I.  190. 
ASSUMPSIT.     (See  Contract.) 

action  of,  when  barred  by  prior  recovery  in  tort,  I.  532. 
when  implied,  II,  102. 
when  not,  103. 

when  plaintiff"  must  declare  on  the  special  contract,  104. 
when  plaintiff"  may  declare  on  common  counts  only,  104. 
form  of  common  counts,  105,  n. 
proof  of  the  consideration,  105. 
conditions  precedent.  105. 
other  material  facts,  under  the  general  issue,  106. 


444  INDEX. 

ASSUMPSIT  —  Continued. 
damages,  II.  106. 
request,  107,  108. 
moral  obligation,  when  sufficient,  107. 
'  promise,  when  implied,  108. 
from  tortious  conversion,  198,  n. 
privity,  what  is  sufficient,  109. 
parties,  want  of  proper,  when  fatal,  110. 
proof  of  particular  capacity  of  plaintiff,  110,  129. 
unlawfulness  of  contract,  when  fatal,  111. 
count  for  money  lent,  proof  of,  112. 
money  paid,  113. 

when  defendant's  order  to  pay  must  be  proved,  114. 
what  payments  are  deemed  officious,  114. 
when  contribution  may  be  had,  115. 
under  a  judgment,  116. 
count  for  money  had  and  received,  proof  of,  117,  118. 

when  delivered  in  trust,  119. 
count  for  money  had  and  received,  when  obtained  by  wrong,  120,  121. 
count  for  money  had  and  received,  when  paid  upon  a  forged  security, 

122. 
count  for  money  had  and  received,  when  paid  upon  a  mistake  of  facts 

or  of  law,  123. 
count  for  money  had  and  received,  when  paid  upon  a  consideration 

which  has  failed,  124. 
count  for  money  had  and  received,  when  paid  upon  an  agreement 

rescinded,  124. 
count  for  money  had  and  received  by  agent,  action  for,  125. 
count  upon  an  account  stated,  proof  of,  126,  127,  128,  129. 
for  work  and  labor,  136  a. 

pleas  by  defendant  in  abatement,  of  misnomer,  130. 
coverture,  130. 
want  of  parties,  131,  132. 
partnership,  134. 
replication  to  plea  of  want  of  parties,  133. 
when  nolle  prosequi  may  be  entered,  133. 
replication  of  infancy,  when  bad,  133. 
general  issue,  what  may  generally  be  shown  under,  135. 
what  matters  in  discharge  may  be  shown  under,  136. 
when  failure  of  consideration  may  be  shown  under,  136. 
ATHEISTS, 

incompetent  witnesses,  I.  368-372. 

(See  Witnesses.) 


INDEX.  445 

ATTACHMENT, 

for  contempt,  I.  319. 
ATTENDANCE   OF   WITNESSES, 
how  procured,  I.  309  —  319. 

(See  Witnesses.     Admiralty,  &c.     Equity.     Courts  Martial) 
ATTESTING   WITNESSES, 

declarations  of  deceased  witnesses  rejected,  why,  I.  126. 
(See  Private  Writings.) 
ATTORNEY, 

when  his  admissions  bind  his  client,  I.  186. 
whether  a  competent  witness,  364,  386. 
actions  by,  in  general,  II.  183. 
actions  for  fees,  evidence  in,  139. 

by  partners,  140. 
retainer,  effect  of,  141,  142. 
conduct  of  business  by,  142. 
extent  of  undertaking,  and  liability,  114,  145. 
defences  to  action  by,  for  fees,  143. 

when  negligence  may  be  shown,  143. 
what  damages  recoverable  against,  146. 
when  amenable  to  summary  jurisdiction,  147. 

actions  against,  for  misconduct  causing  loss  of  debt,  148. 
loss  of  title,  149. 

(See  Privileged  Communications.) 
ATTORNEY   AND    CLIENT. 

burden  of  proof  between,  in  Equity,  III.  253. 
AUCTIONEER, 

is  agent  of  both  buyer  and  seller,  I.  269. 
AUTHORITY, 

when  it  needs  not  be  proved,  II.  316,  n. 
AUTREFOIS   ACQUIT,  III.  35. 
AUTREFOIS    CONVICT,  III.  35. 

(See  Parmer  Judgment.) 
AVERMENT.     (See  Allegations.) 
AWARD, 

generally  conclusive,  I.  183,  n.,  184. 

B. 
BAIL, 

how  rendered  a  competent  witness  for  principal,  I.  430. 
(See  Witnesses.) 
BAILOR, 

when  a  competent  witness,  I.  348. 


446  INDEX. 

BANK, 

books  of,  r.  474,  493. 

(See  Public  Records  and  Documents^ 
BANKER'S    CHECKS, 

presentment  of,  II.  195  a. 
BANKRUPT, 

when  competent  as  a  witness,  I.  392. 
BANKRUPTCY, 

effect  of  discharge  by,  to  restore  competency,  I.  430. 
BAPTISM, 

register  of,  I.  493. 
BARON   AND    FEME.     (See  Husband  and  Wife.) 
BARRATRY, 

what,  III.  66,  67. 

indictment  for,  66,  n. 

proof  of,  67. 
BASTARDY, 

who  are  bastards,  II.  150. 

adulterine,  how  proved,  150,  n. 

when  parents  are  competent  witnesses,  151. 

period  of  gestation,  152. 

may  be  shown  by  proving  marriage  void,  153. 
parents  divorced,  153. 

may  not  be  shown  by  proving  marriage  voidable,  153. 

when  legitimacy  will  be  presumed,  153. 
BEGINNING   AND    REPLY, 

who  are  entitled  to  it,  I.  75. 

whether  affected  by  proof  of  damages,  75,  76. 
BELIEF, 

grounds  of,  I.  7-12. 

of  handwriting,  575. 

(See  Experts.     Witnesses.) 
BENTHAM,  JEREMY, 

character  of  his  legal  writings,  I.  435,  «. 
BIBLE, 

family  record  in,  when  evidence,  I.  104. 
BIGAMY, 

proof  of,  by  second  wife,  I.  339. 

(See  Polygamy.) 
BILL   IN   EQUITY, 

how  far  its  statements  are  evidence  against  plaintiff,  I.  212. 

its  structure,  III.  274. 

when  evidence  for  the  pluintift",  276. 


INDEX.  447 

BILL    IN    EQUITY  —  Continued. 

when  evidence  agfiin~t  the  plaintiff,  III.  274,  275. 
(See  Equity.) 
BILLS   OF   EXCHANGE   AND   PROMISSORY   NOTES, 
parties  to,  when  incompetent  to  impeach,  I.  383  -  385. 

(See    Witnesses.) 
by  what  law  governed.  II.  L53  d. 
varieties  of  liabiHty  and  rera<-dies  upon,  154. 
material  allegations  in  actions  upon,  155. 
must  be  pleaded  according  to  their  legal  effect,  14,  15. 
forms  of  declarations  upon,  155,  n. 
(1.)  existence  of  the  instrument,  proof  of,  156. 
when  lost,  156. 
when  made  by  partner,  167. 
what  further  must  be  shown  under  the  general  issue,  156. 
signature  of  the  instrument,  proof  of,  158,  159,  162. 

when  dispensed  with,  159. 
identity  of  the  instrument,  what  is  descriptive  of,  160. 

of  parties  to  the  instrument,  proof  of,  158,  160. 
cuiTency,  when  value  of,  to  be  proved,  160. 
usances,  when  to  be  proved,  160. 
acceptance,  when  not  necessary  to  be  proved,  160. 
(2.)  proof  that  defendant  is  a  party  to  the  instrument,  161. 
by  his  acceptance,  161. 

by  his  promi-e  to  accept  a  non-existing  bill,  161,  n. 
proof  that  defendant  is  a  party  by  testimony  of  other  parties,  when, 
161. 
(3.)  plaintiff's  interest,  or  title  to  sue,  must  be  proved,  163. 
when  admitted  by  acts  of  defendant,  164. 
limitation  of  such  admissions,  165. 
admission  of  procuration,  what  is,  1 64. 

of  indorsements,  what  is,  1 65. 
indorsements,  what  must  be  alleged  and  proved,  166. 
partnership,  when  to  be  proved,  167. 
indorsement  in  blank,  effect  of,  168. 
action  by  drawer  v.  acceptor,  evidence  in,  169. 
indorser  v.  acceptor,  169. 
accommodation  acceptor  v.  drawer,  170. 
other  actions  founded  on  return  of  bill,  evidence  in,  169. 
consideration,  when  impeachable,  171  -  173. 
(4.)  plaintiff  must  prove  breach  of  contract  by  defendant,  174. 
presentment,  when,  174-  176,  186  n. 
presentment,  when  not  excused,  177. 


448  INDEX. 

BILLS   OF    EXCHANGE,  6lc.— Continued. 

at  what  time  to  be  made,  IL  178,  179,  181 

at  what  place,  180,  180  a. 

when  provable  by  entries,  182. 
protest,  when  necessary  to  be  proved,  183. 

when  want  of,  excused,  184,  196. 

when  not  necessary,  185. 
dishonor,  notice  of,  necessary,  186. 

due  diligence  in,  a  mixed  question,  186. 

form  of  notice,  and  by  whom  to  be  given,  186. 

when  to  be  given,  186,  187. 

when  sent  by  post,  187. 

when  plaintiff  must  prove  that  it  was  received,  187. 

by  agent  or  banker,  187  a. 

when  agent  or  banker  treated  as  holder,  187  a. 

where  parties  reside  in  the  same  town,  188. 

variance  in,  what,  189. 

when  waived,  190,  190  a. 

when  not,  190. 

knowledge  of  the  fact,  sufficient,  190,  n. 

probability  of  the  fact,  not,  190,  n. 

by  letter  not,  how  proved,  191,  193. 

notice  to  produce,  191,  192. 

to  what  place  to  be  sent,  194. 
want  of  notice  of,  when  excused,  195,  196. 

in  case  of  banker's  checks,  195  a. 

excuse  need  not  be  averred,  197. 
defences  to  actions  on,  198  -  202. 

by  impeaching  consideration,  199. 

by  other  equities  between  original  parties,  200. 

by  matter  in  discharge  of  acceptor,  201. 
of  other  parties,  201. 

by  matter  in  discharge  of  parties  collaterally  liable,  202. 

by  new  agreement,  202. 
competency  of  parties  to,  as  witnesses,  203. 

drawer,  203. 

partner,  203. 

maker,  ?04. 

acceptor  or  drawee,  205. 

payee,  206. 

indorser.  207. 
BIRTH, 

proof  of,  L  104,  116,493. 


INDEX.  449 

BISHOP'S   REGISTER, 
inspection  of,  I.  474. 
nature  of,  483,  484. 

(See  Public  Books.) 
BLANK, 

in  an  instrument,  when  and  by  whom  it  may  be  filled,  I.  567,  568. 
568  a. 
BLASPHEMY, 
what,  IIL  68. 
indictment  for,  68,  n. 
proof  of,  III.  70. 
BOND.     (See  Private    Writings.) 
BOOKS, 

of  science,  not  admissible  in  evidence,  I.  440,  n. 

shop,  when  and  how  far  admissible  in  evidence,  117. 

of  third  persons,  when  and  why  admissible,  115-117,  120,  151  -154. 

(See  Hearsay?) 
office  books,  corporation  books,  &c.,  474-476,  493-495- 
(See  Public  Records  and  Documents.) 
BOUNDARY, 

surveyor's  marks  provable  by  parol,  I.  94. 
when  provable  by  reputation,  145,  n. 
rules  of  construction  as  to,  301,  n. 
BRIBERY, 

what,  IIL  71. 
indictment  for,  71,  n. 
completed  by  the  offer,  72. 
not  purged  by  refusal  to  act  as  promised,  72. 
by  corrupting  a  voter,  how  proved,  73. 
BURDEN   OF   PROOF,  L  74-81.     {^qq  Onus  Prohandi.) 
BURGLARY, 
what.  III.  74. 
night-time  essential,  75. 
breaking,  actual,  76. 

constructive,  76,  77. 
entry,  what  is,  78. 

into  a  mansion  house,  79,  80. 
inhabited,  79. 
ownership  of  house,  81. 
proof  of  intent,  82. 

fact  of  breaking,  83. 
time  of  breaking,  83. 

VOL.  III.  29 


460  INDEX. 

c. 

CANCELLATION.     (See  Deed.     Will.) 
CAPTAIN.     (See  Shipmaster.) 
CARRIER, 

when  admissible  as  a  witness,  L  416. 
liability  of,  and  remedies  against,  II.  208. 

forms  of  declaration  against,  210,  n. 
(1.)  contract,  proof  of,  209. 

when  it  must  be  proved  in  tort,  214. 

termini  and  variance,  209. 

proper  parties  to  the  suit,  212. 

common,  proof  of  contract  supplied  by  law,  210. 

who  are  such,  211. 
(2.)  delivery  of  goods,  proof  of,  213. 
(3.)  loss  or  non-delivery  of  goods,  proof  of,  213. 

when  plaintiff's  oath  admissible,  213. 
proof  of  joint  interest  in  assumpsit,  214. 

in  tort,  214. 
whether  carrier  may  restrict  his  own  liability,  215. 
notice  by,  burden  of  proving,  216. 

when  by  advertisement,  proof  of,  216. 

when  several  and  different  notices,  217. 

eflfect  of,  how  avoided,  218. 

waiver  of,  218. 
negligence,  &c.,  on  whom  is  the  burden  of  proof,  218. 
private,  excused  by  accident,  219. 
common,  what  excuses,  219. 
when  excused  by  act  of  plaintiff,  220. 
of  passengers,  liabilities  of,  as  to  persons,  221. 

as  to  luggage,  221,  n. 

liable  only  for  negligence.  222,  &  n.  3,  222  a,  n.  3. 

in  cases  of  mutual  negligence,  221,  n.  5. 
of  passengers,  burden  of  proof  on,  222. 

breaking  of  coach  presumptive  proof  of  negligence,  222. 

when  not  bound  to  receive  or  convey,  222  a. 
CASE,  action  upon  the, 

distinction  between  trespass  and  case,  II.  224. 

lies  for  injuries  to  relative  rights,  225. 

when  trespass  or  case  lies,  225. 

whether  case  lies  for  injuries  to  absolute  rights  with  force,  226. 

proof  of  joint  interest  in  plaintiffs,  227. 

joint  liability  in  defendants,  when,  228. 
allegation  of  time,  when  material  to  be  proved,  229. 


INDEX. 


451 


CASE  —  Continued. 

malice  and  negligence,  proof  of,  11.  230. 
misrepresentation,  230  a. 
for  injury  to  real  property,  230  h. 
general  issue,  evidence  under,  231. 

damage  resulting  from  want  of  due  care  by  plaintiff,  231  a. 
special  pleas  when  necessary,  232. 
liability  of  master  for  servant,  232  a. 
CERTIFICATES, 

by  public  officers,  in  what  cases  admissible,  I.  498. 
CERTIORARI, 

to  remove  records,  I.  502. 
CESTUI   QUE   TRUST, 

when  his  admissions  are  evidence  against  his  trustee,  I.  180. 
CHANCERY.     (See  Bill.     Ansiver.     Deposition.     Equity.) 
CHARACTER, 

when  it  is  relevant  to  the  issue,  L  54,  55. 
when  it  is  in  issue  in  criminal  cases,  III.  25,  26. 
of  person  injured,  27. 
of  prosecutrix  for  rape,  214. 
CHEATING, 

what  constitutes  this  crime.  III.  84. 
indictment  for,  84. 
by  false  weights,  tokens,  &c.,  86. 
proof  of  this  crime,  84,  87,  88. 
CHILDREN, 

compentency  of,  as  witnesses,  I.  367. 
CIRCUMSTANTIAL   EVIDENCE. 

(See  Evidence.     Presumption.) 
CLERGYMEN, 

generally  bound  to  disclose  confessions  made  to  them,  I.  229,  247. 
CLERK, 

of  attorney,  when  not  compellable  to  testify,  I.  239. 
COHABITATION, 

when  presumptive  evidence  of  legitimacy  of  issue,  L  82. 
COLLATERAL   FACTS, 

what,  and  when  excluded,  I.  52,  443. 
COLLISION, 

rules  for  avoiding,  III.  407. 
competency  of  witnesses  in,  414. 
COLOR, 

when  a  material  averment,  I.  65. 
COMMISSION, 

to  take  testimony,  I.  320. 


452  INDEX. 

COMMITMENT, 

proved  by  calendar,  I.  493. 
COMMON, 

customary  right  of,  provable  by  reputation,  I.  128, 131,  137,  n^  405. 
COMMONER, 

when  a  competent  witness,  I.  405. 
COMPARISON   OF   HANDWRITINGS. 

(See  Private  Writings.) 
COMPETENCY.     (See  Husband  and  Wife.      Witnesses.) 
COMPROMISE, 

offer  of,  not  an  admission,  I,  192. 
CONDEMNATION.     (See  Records  and  Judicial  Proceedings.) 
CONFESSION  OF    GUILT, 

difference  between  confessio  juris  and  confessio  facti,  I.  96. 

to  be  received  with  great  caution,  214. 

judicial,  conclusive,  216. 

extrajudicial,  not  conclusive,  without  corroborating  proof,  217. 

the  whole  to  be  taken  together,  218. 

must  be  voluntary,  219,  220. 

influence  of  inducements  previously  offered  must  have  ceased,  221,  222. 

made  under  inducements  offered  by  officers  and  magistrates,  222. 

by  private  persons,  223. 
made  during  official  examination  by  magistrate,  224-227. 
what  inducements  do  not  render  inadmissible,  229. 
by  drunken  persons  admissible,  229. 
made  under  illegal  restraint,  whether  admissible,  230. 
when  property  discovered,  in  consequence  of,  231. 

produced,  by  person  confessing  guilt,  232. 
by  one  of  several  jointly  guilty,  233. 
by  agent,  234. 

in  case  of  treason,  its  effect,  235. 
CONFIDENTIAL    COMMUNICATIONS, 

not  generally  privileged,  unless  in  certain  cases,  I.  237,  248. 
(See  Evide7ice.     Privileged  Communications.) 
CONFIRMATION, 

of  testimony  of  accomplices  when  required,  I.  380,  381,  382. 
CONSENT, 

when  implied  from  silence,  I.  197-199. 
CONSENT   AND   SUBMISSION, 

difference  between.  III.  59,  n. 
CONSIDERATION, 

when  the  recital  of  payment  of,  may  be  denied,  L  26. 
when  it  must  be  stated  and  proved,  66-68. 


INDEX.  45iJ 

CONSIDERATION  —  Continued. 

when  a  further  consideration  may  be  proved,  I.  285,  304. 

when  divisible,  II.  136. 
CONSOLIDATION   RULE, 

party  to,  incompetent  as  a  witness,  I.  395. 
CONSPIRACY, 

conspirators  bound  by  each  other's  acts  and  declarations,  L  111. 

generally  not  competent  witnesses  for  each  other,  407. 

who  are  conspirators.  III.  40. 

described,  89,  90. 

objects  of  the  crime,  90. 

its  essence,  91. 

mode  of  proof,  92,  93. 

acts  of  each  conspirator  admissible  against  all,  94. 

means  of  accomplishing,  when  to  be  alleged  and  proved,  95. 

proof  of  criminal  intent,  96. 

acquittal  or  death  of  one  conspirator,  its  effect,  97. 

admissibility  of  wife  of  one,  98. 

liability  of  wife  to  indictment  with  her  husband,  98. 

correspondence  between  conspirators,  when  admissible,  99. 
CONSTABLE, 

confessions  made  under  inducements  by,  inadmissible,  I.  222. 
CONSTRUCTION, 

defined,  L  277. 
CONTEMPT, 

in  arresting  a  witness,  or  preventing  his  attendance,  L  316. 
CONTRACT, 

when  presumed,  I.  47. 

is  an  entire  thing,  and  must  be  proved  as  laid,  66,  II.  136  a,  261  a. 
CONVEYANCE, 

when  presumed,  I.  6. 
CONVEYANCER, 

communications  to,  privileged,  L  241. 
CONVICTION, 

record  of,  is  the  only  proper  evidence,  I.  374,  375. 
(See  Witnesses.) 
COPY, 

proof  by,  when  allowed,  L  91,  479-490,  514-520,  559,  571,  n. 
(See   Public  Records  and  Documents.     Records  and  Judicial  Writ- 
ings.) 
COPYRIGHT,  IL  510-515. 

(See  Patents.) 
CORONER.     (See  Officer.) 


454  INDEX. 

COEPORATIONS, 

their  several  kinds  and  natures,  I.  331-333 
shares  in,  are  personal  estate,  270. 
libel  by,  III.  note  to  179. 
CORPORATOR, 

when  admissible  as  a  witness,  I.  331  -  333. 

(See  Witnesses.) 
admissions  by,  175,  n. 
CORPUS  DELICTI, 

importance  of  proving  it,  III.  30. 
CORRESPONDENCE, 

the  whole  read,  I.  291,  w. 

(See  Letters.) 
CORROBORATION.     (See  Confirmation.) 
of  answer  in  chancery,  I.  2  GO. 

(See  Equity.) 
CORROBORATIVE  EVIDENCE, 

what  it  is,  I.  381,  n. 
COSTS, 

liability  to,  renders  incompetent,  I.  401,  402. 
(See  Witnesses.) 
CO-TRESPASSER, 

when  admissible  as  a  witness,  I.  357,  359. 
(See  Witnesses.) 
COUNSEL,  I.  237-246. 

(See  Privileged  Communications.) 
COUNT, 

when  several  and  when  not,  II.  105,  n. 
COUNTERPART, 

if  any,  must  be  accounted  for,  before  secondary  evidence  is  admitted, 
I.  558. 
COURTS-MARTIAL, 

Proceedings  in,  III.  468  -  475. 
martial  law,  468,  469. 
mihtary  law,  468,  469. 
jurisdiction,  470. 
criminal  nature  of,  471. 
accusation,  472. 
charge  and  specification,  472. 
answer,  473. 
pleas,  473. 
judge  advocate,  474. 
courts  of  inquiry,  475. 


INDEX.  455 

COURTS-MARTIAL  —  Continued. 
Evidence, 

1.  general  rules,  III.  476-484. 
as  to  relevancy,  476. 

character,  477. 

opinions,  478. 

strangers,  479. 
substance  of  issue,  480. 
time  and  place,  481. 
best  evidence,  482. 
exceptions  to  this  rule,  483. 
official  character,  483. 

2.  attendance  of  witnesses, 
military  persons,  485. 
not  military,  485. 

how  sworn,  486. 

3.  competency  of  witnesses^ 
the  prosecutor,  487. 
persons  infamous,  488. 

interested,  488. 
deficient  in  mind,  488. 
deserters,  488. 
joint  fellow-prisoners,  489. 

4.  examination  of  witnesses, 
in  open  court,  490. 

apart  from  each  other,  491. 

in  writing,  492. 

by  the  court,  suo  motu,  493. 

5.  depositions, 

not  generally  allowed,  495. 
admitted  in  cases  not  capital,  495. 
how  taken,  496. 

6.  writings, 

report  of  a  court  of  inquiry,  498. 

records  of  courts-martial,  499. 

general  orders,  499. 

articles  of  war,  499. 

should  be  recorded  in  the  proceedings,  500. 

private  letters,  501. 
COVENANT, 

effect  of  alterations  upon,  I.  564-568. 

(See  Private    Writings.) 
declarations  in,  11.  239,  «.,  240,  n.,  242,  n.,  243,  n.,  245,  n. 


456  INDEX. 

COVENANT  —  Continued. 

no  general  issue  in,  II.  233. 
proof  of  the  instrument,  234. 

performance  of  condition  precedent,  235. 

breach  of  covenant,  236,  237. 

of  indemnity,  236. 
breach  to  be  substantially  proved,  237. 
notice,  when  necessary,  238. 
against  defendant,  as  assignee  of  covenantor,  239. 

defences  by,  239. 
by  plaintiff,  as  assignee,  evidence  by,  240. 
real,  what  are  such,  240. 

who  may  sue  thereon,  240. 
of  seisin,  what  is  a  breach  of,  241. 
of  freedom  from  encumbrance,  breach  of,  242. 
for  quiet  enjoyment,  breach  of,  243. 
of  warranty,  breach  of,  244. 

against  assigning  and  underletting,  breach  of,  245. 
to  repair,  breach  of,  245  a. 
plea  of  no«  est  factum,  effect  of,  246. 

evidence  under,  246. 
plea  of  performance,  who  must  prove,  247. 
COVERTURE.     (See  Husband  and  Wife.) 
CREDIT  OF   WITNESSES, 

mode  of  impeaching,  I.  464  -  469. 

restoring,  467. 

(See  Witnesses.) 
CREDITOR, 

when  competent  as  a  witness,  I.  392. 
CRIME, 

defined,  ni.  1. 
attempt  to  commit,  2. 
persons  capable  of  committing,  3. 
infants,  4,  9. 
insane  persons,  6,  9. 
femes  covert,  7. 
persons  under  duress,  8. 
idiots  and  lunatics,  9. 
how  to  be  set  forth  in  the  indictment,  10. 
not  excused  by  ignorance  of  law,  20. 
when  excused  by  ignorance  of  fact,  21. 
what  crimes  render  incompetent,  I.  373,  374. 
(See  Witnesses.) 


INDEX.  457 

CRIMEN  FALSI, 
what,  I.  373. 

(See  Witnesses.) 
CRIMINAL   CONVERSATION,  action  for, 
letters  of  wife  to  husband  admissible,  I.  102. 
wife  competent  to  prove,  344. 

(See  Adultery.     Marriage.) 
CROSS-EXAMINATION, 
of  witnesses,  I.  455  -  467. 

(See  Witnesses.) 
CURTESY, 

tenant  by,  a  competent  witness  for  the  heir,  I.  389. 
CUSTODY, 

proper,  what,  I.  142. 
CUSTOM  AND  USAGE, 
how  proved,  L  128-139. 
by  what  witness,  405. 

(See  Hearsay.) 
what,  IL  248. 

its  difference  from  prescription,  248. 
local,  who  is  competent  to  prove,  249. 
usage,  who  is  competent  to  prove,  249. 
local,  how  proved,  250. 
usage,  what  and  how  proved,  251. 
and  usage  must  both  be  proved  by  evidence  of  facts  only,  252. 

by  what  witnesses,  252. 
usage  founded  on  foreign  laws,  how  proved,  252. 
proof  of,  one  witness  not  enough,  252. 
(See  Prescription.) 
CUSTOM-HOUSE, 

books,  inspection  of,  I.  475. 

(See  Public  Boohs.) 


D. 
DAMAGES, 

proof  of,  I.  75. 

when  unliquidated,  76. 

what,  and  when  given,  II.  253. 

vindictive  or  exemplary.  III.  253,  n. 

general  and  special,  defined,  224. 

to  be  assessed  by  the  jury,  255. 

nominal,  when  plaintiff  may  take  judgment  for,  254,  255. 


458  INDEX. 

DAMAGES  —  Continued. 

the  natural  and  proximate  cause  of  the  wrongful  act^  III.  256  &  n. 

5,  635. 
liquidated,  by  whom  to  be  proved,  257. 

what  are  such,  258,  259. 
proof  of,  not  confined  to  number  and  value  alleged,  260. 
may  be  assessed  beyond  alleged  value,  260. 

not  beyond  ad  damnum,  260. 
measure  of,  general  rule,  253,  w.,  261. 

when  no  particular  sum  or  quantity  is  proved,  255. 

on  bills  of  excliange,  261. 

on  contracts  to  deliver  goods,  261. 
to  replace  stock,  261. 
to  convey  land,  261,  n. 
for  labor  and  service,  261,  261  a. 
where  not  prevented  by  plaintiff,  261. 
on  breach  of  warranty  of  goods,  263. 
in  debt  on  bond,  263. 
measure  of,  whether  beyond  the  penalty  and  interest,  257,  n.,  263. 

on  covenants  of  title,  264. 
of  warranty,  264. 
ordinarily  measured  by  the  actual  injury,  253,  n.,  265. 
exceptions  to  this  rule,  265. 
aggravated  and  mitigated,  when,  266. 
in  actions  for  injuries  to  the  person,  267. 
in  actions  for  injuries  to  the  reputation,  267,  269. 
proof  of,  how  restricted,  268. 
to  what  time  computed,  268  a. 
when  costs  may  be  included,  268  a. 
prospective,  wlien  allowed,  268  b. 

when  and  how  far  affected  by  (he  character  and  rank  of  the  parties,  269. 
whether  affected  by  intention  of  the  party,  230  a,  270,  272. 
when  dependent  wholly  on  the  intention,  271. 
when  increased  by  bad  intention,  272. 
evidence  in  mitigation  of,  272,  458,  625. 
when  (excluded,  274. 

in  aggravation  of,  273. 
in  case  for  nuisance,  474. 
for  seduction,  II.  577  a. 
in  slander,  275. 
in  trespass,  635  a. 
in  trover,  276,  619. 
in  violation  of  patent-,  496,  n. 


INDEX.  459 

DAMAGES  —  Continued. 
for  waste,  II.  650. 
against  several  for  a  joint  tort,  111 . 
severally  assessed,  election  de  melioribus  damni's,  277. 
alia  enormia,  evidence  under  the  allegation,  278. 
DATE, 

when  essential  to  be  proved.  III.  12,  13,  160. 
when  reckoned  inclusive,  489,  n. 
DEAF   AND    DUMB, 

competent  witness,  I.  366. 
DEATH, 

when  presumed,  I.  29,  30,  35,  41. 

proof  of,  550. 

amount  of  proof  required  in  different  cases,  in  general,  II.  278  a. 

proof  of,  in  what  cases  usually  required,  278  b. 

direct  proof  of,  278  c. 

indirect  proof,  278  d. 

by  documents,  278  d. 
identity  of  persons,  proof  of,  278  d. 
indirect  oral  evidence  of,  278  e. 
burden  of  proof,  278  e. 
presumption  of  life,  278  e. 

of  death,  278/. 
diligent  inquiry  necessary,  278/ 
proof  of,  by  family  conduct,  278  g. 

by  reputation  in  the  family,  278  g, 
amount  of  proof  required  in  actions  for  possession  of  the  realty,  278  h. 
personalty,  278  h. 
DEBT, 

when  it  lies,  II.  279. 

forms  of  declarations  in,  279. 

plea  of  710 n  est  factum,  evidence  under,  279,  292. 

nil  debet,  280,  281,  281  a,  282,  287. 

nil  habuit  in  tenementis,  281. 

statute  of  limitations,  282. 

former  recovery,  282. 
for  a  penalty,  proof  in  support  of,  283,  284. 

proof  in  defence,  285. 
for  bribery  at  an  election,  proof  in  support  of,  286. 

proof  in  defence,  287. 
for  an  escape,  288. 

assignment  of  breaches  on  record,  289. 
plea  of  solvit  ad  diem,  evidence  under,  290,  291. 


460  INDEX. 

DEBT  — Continued. 

solvit  post  diem,  II.  290,  291. 
parol  proof  of,  291  a. 
DECLARATIONS.     (See  Admissions.     Hearsay.) 
DECREES  IN  CHANCERY, 
proof  of,  I.  511. 

their  admissibility  and  effect,  550,  551. 
DEDICATION.     (See  Way.) 
DEED, 

when  presumed,  I.  46. 
how  to  be  set  out  in  pleading,  69. 
cancellation  of,   when  it  devests  the  estate,  265. 
delivery  of,  568  a,  n. 

how  far  put  in  issue  by  plea  of  non  est  factum,  II.  293. 
proof  of,  in  v.hat  it  consists,  294. 
how  proved,  294. 
proof  of  signing,  295. 
of  sealing,  296. 
of  delivery,  297. 

foreign  authentication,  298. 
acknowledgment,  298. 
plea  of  7ion  est  factmn,  what  may  be  shown  under  by  defendant,  300. 
burden  of  proof  when  on  plaintiff,  300. 
on  defendant,  300. 
DEFAULT, 

judgment  by,  its  effect  on  admissibility  of  the  party  as  a  witness  for 
co-defendants,  I.  355,  356,  357. 
DEMAND, 

when  necessary  to  be  proved,  II.  174-176. 
DEMURRER, 

in  chancery,  effect  of,  I.  551. 
DEPOSIT, 

of  money,  to  restore  competency  of  witness,  I.  430. 
DEPOSITIONS, 

not  admissible  in  criminal  cases,  III.  11. 

of  witnesses  subsequently  interested,  whether  admissible,  I.  167,  168. 
of  witnesses  residing  abroad,  when  and  how  taken,  320. 
sick,  &c.,  320,  321. 

in  general,  manner  of  taking,  321  -324. 
in  perpetiiam,  324,  325,  552,  III.  325. 
taken  in  chancery,  how  i)r()ved,  to  be  read  at  law,  I.  552,  553. 
mode  of  taking  in  chancery,  III.  319  -  326. 
in  chancery,  when  read  by  consent,  extent  of  the  admission,  326. 


INDEX.  461 

DEPOSITIONS  —  Continued. 

of  party,  when  admissible,  III.  326. 
taken  in  another  suit,  when  admissible,  326. 
taken  in  a  cross  cause,  342. 

taken  in  exchequer,  when  admissible  in  chancery,  343. 
foreign,  I.  552. 

to  be  read  in  another  action,  complete  identity  of  parties  not  requi- 
site, 553,  554,111.  341-343. 

power  of  cross-examination  requisite,  I.  554. 
■when  admissible  against  strangers,  555. 

(See  Equity.      Witnesses.) 
DESCRIPTION, 

what  is  matter  of,  I.  56  -  72. 
in  general,  56-64. 
in  criminal  cases,  65. 
in  contracts,  66-68. 
in  deeds,  68,  69. 
in  records,  70. 
in  prescription,  71. 
DEVISE, 

must  be  in  writing,  I.  272. 

admissibility  of  parol  evidence  to  explain,  287,  289-291. 
(See   Wills.) 
DIPLOMA, 

of  physician,  when  necessary  to  be  shown,  I.  195,  n. 
DISCHARGE, 

of  written  contract,  by  parol,  I.  302  -  304. 
DISCOVERY, 

answer  to  bill  for,  its  effect.  III.  290,  291. 

of  documents,  when  it  may  be  had,  298,  n.,  300,  302,  303. 

bill  for,  superseded  by  notice  to  produce,  304. 

practice  in  State  courts,  304,  n. 

(See  Privileged  Communications.) 
DISFRANCHISEMENT, 

of  a  corporator,  to  render  him  a  competent  witness,  I.  430. 
DISPARAGEMENT   OF   TITLE, 

declarations  in,  I.  109. 
DIVORCE, 

foreign  sentence  of,  its  effect,  I.  544,  545. 
DOMICILE, 

declarations  as  to,  I.  108. 
DOWER, 

tenant  in,  a  competent  witness  for  heir,  L  389. 


462  INDEX. 

DRIVER, 

of  carriage,  when  incompetent  as  a  witness,  I.  396. 
DRUNKENNESS,  II.  171,  n.,  300,  374. 

how  far  it  excuses  crime,  III.  6,  148. 
DUCES   TECUM, 

subpoena,  I.  414,  558,  III.  305. 

(See  Equity.     Private  Writings.      Witnesses.) 
DUPLICATE, 

must  be  accounted  for,  before  secondary  proof  admitted,  I.  558. 
DURESS, 

admissions  made  under,  I.  193. 

what,  II.  301. 

per  minas,  301. 

of  imprisonment,  302. 

money  paid  by,  121. 
DWELLING-HOUSE, 

what  is  meant  by  the  term  in  a  charge  of  arson,  III.  52. 
DYING   DECLARATIONS, 

when  admissible,  I.  156,  162,  346,  IIL  236. 


E. 

ECCLESIASTICAL   COURTS, 

number  of  witnesses  required  in,  I.  260  a,  n. 

what  parts  of  their  jurisdiction  known  here,  510,  559. 

proceedings  in,  how  proved,  &c.,  519,  518. 

their  effect,  550. 
EJECTMENT, 

defendant  in,  when  a  competent  witness,  I.  860. 
nature  of,  and  ground  of  recovery  in,  II.  303. 
points  to  be  proved  by  plaintiff,  304. 
title  of  plaintiff,  when  not  necessary  to  be  proved,  305. 

who  are  estopped  to  deny  it,  305. 

title,  proof  of,  by  payment  of  rent,  306. 

when  both  parties  claim  under  the  same,  307. 
possession  of  the  lands  by  defendant,  proof  of,  308. 
title  of  heir  or  devisee,  proof  of  pedigree  and  descent,  309. 

seisin  of  ancestor,  310,311. 

entry,  by  whom  made,  312. 
title  of  remainder-man,  &c.,  proof  of,  313. 

legatee  of  term  of  years,  proof  of,  314. 

executor  or  administrator,  proof  of,  315. 

guardian,  315. 


INDEX. 


468 


EJECTMENT  —  Continued. 

purchaser  under  sheriff's  sale,  II.  316. 
title  by  a  joint  demise,  317. 
by  several  devises,  317. 

when  proved  to  be  to  part  only  of  the  land,  317. 
ouster  of  one  tenant  in  common  by  another,  318. 

by  landlord  against  tenant,  plaintiff  must  prove  tenancy  determined, 
319. 
by  lapse  of  time,  320. 
by  notice  to  quit,  321. 
service  of  notice,  322,  324. 
form  of  notice,  323. 
notice,  when  not  necessary,  325. 

when  waived,  325. 
by  forfeiture,  326. 

for  non-payment  of  rent,  326. 
for  other  breach,  327. 
for  underletting,  328. 
between  mortgagee  and  mortgagor,  329. 
defence  of  mortgagor,  by  proof  of  payment,  330. 

usury,  330. 
what  may  be  shown  in  defence  of  this  action,  331. 
damages  in,  332. 

trespass  for  mesne  profits,  plaintiff  must  prove  the  judgment,  333. 
defendant's  entry,  333. 
his  own  possession,  334. 
trespass  for  defendant's  occupancy,  335. 
what  damages  plnintiff  may  recover,  336. 
lasting  improvements,  remedy  of  defendant  for,  337. 
other  defences  in,  337. 

.  (See  Real  Actions.) 
EMBRACERY, 
what,  III.  100. 
indictment  for,  100,  n. 
proof  of,  101. 
ENROLMENT, 

of  deeds,  I.  573,  n. 
ENTRIES, 

by  third  persons,  when  and  why  admissible,  I.  115-117,  120,  151- 
155. 

(See  Hearsay^ 
EQUITY, 

Proceedings  in,  III.  256-259. 


464  INDEX. 

EQUITY  —  Continued. 

trials  by  jury  in,  TIL  260  -  266. 
diversities  of  practice,  267. 
modern  English  practice,  267,  n. 
structure  of  bill,  274. 
Evidence  in, 

generally  same  at  law,  250. 

wherein  differing,  250,  251,  253,  254,  254  a,  254  h. 

objections  to  mode  of  taking,  252. 

burden  of  proof,  253. 

fraud  sometimes  presumed,  254. 

facts  when  presumed,  272. 

of  conversations  not  expressly  charged  in  bill  or  answer,  323,  n. 

of  facts  not  specifically  alleged,  356. 
when  admissible,  357. 

1.  things  judicially  noticed,  269-272. 

2.  admissions, 

in  bill,  evidence  against  the  plaintiff,  274,  275. 

for  the  plaintiff,  276. 
in  answer,  how  far  evidence,  277  -  282. 

(See  Answer.) 
judicial,  in  equity,  292. 

strictly  interpreted,  293. 

contrary  to  law,  not  allowed,  294. 
oral,  when  provable  in  equity,  323,  n. 
in  answer,  when  evidence  against  the  defendant,  277. 
of  infant,  278,  279,  280. 
of  husband  and  wife,  278. 
of  wife  alone,  278. 

what  parts  to  be  read  in  evidence,  281. 
manner  of  statement  material,  282. 
of  one  defendant,  whether  evidence  against  another,  283. 

for  another,  283. 
when  evidence  in  defendant's  favor,  284,  285. 
nature  of  answer,  284. 
test  of  its  responsive  character,  285. 
not  sworn  to,  its  effect,  286, 

limitations  of  its  general  admissibility  in  defendant's  favor,  287. 
how  far  regarded  as  mere  pleading,  284,  287. 
when  taken  as  true,  though  not  responsive,  288. 
its  effect  as  evidence,  289. 
what  proof  necessary  to  outweigh  it,  289. 
statute  provisions  on  tiiis  subject,  289,  n. 


INDEX. 


465 


EQUITY —  Continued. 

2.  admissions, 

in  answer,  continued. 

effect  in  evidence  for  defendant  limited  to  responsive  parts,in.290. 

different  rule  at  law,  290. 
to  bill  of  discovery,  291. 

3.  documents, 

production  of,  295  -  297. 

right  to  call  for,  298. 

referred  to  in  tiie  answer,  299. 

not  referred  to,  299. 

privileged,  in  what  cases,  300. 

where  to  be  produced,  301. 

produced  by  cross-bill,  302,  303. 

cross-bill  not  necessary  for,  in  United  States,  304. 

State  practice  as  to  production,  804,  n. 

when  in  hands  of  a  third  person,  how  produced,  305. 

proof  of  execution,  306,  308. 

rights  of  parties  obtaining  production,  807. 

may  inspect  and  take  copies,  307. 
admission  of  genuineness,  mode  of  compelling,  308,  n. 
proved  by  depositions,  308. 

or  viva  voce,  309. 
mode  of  examination  viva  voce,  in  equity,  310. 
formal  proof  of,  gives  no  right  of  inspection,  311. 
4.  witnesses, 

competency  of,  313. 

co-plaintiff,  314. 

nominal  plaintiff,  314. 

defendant,  for  plaintiff,  315. 
effect  of  plaintiff's  examining  defendant,  316. 
competency  of  plaintiff  for  defendant,  317. 

co-defendant,  318. 

depositions, 

mode  of  taking,  319-324. 

in  perpetuam,  325. 

read  by  consent,  extent  of  admission,  326. 

of  party,  when  admissible,  326. 

taken  in  another  suit,  326. 

taken  in  a  cross-cause,  342. 

in  exchequer,  343. 

when  suppressed,  349-351. 

amendment  of.  352. 

VOL.  III.  ^^ 


466  INDEX. 

EQUITY  —  Continued. 

0.  inspection  in  aid  of  proof, 

when  admitted  in  equity,  III.  328,  329. 

6.  further  information  or  proof 

when  required  by  the  court  in  equity,  330  -  339. 
by  evidence  viva  voce,  331. 
by  reference  to  a  master,  332. 
authority  of  the  master,  333-336. 

(See  blaster  in  Chancery.) 
by  a  feigned  issue,  337  -  339. 

7.  evidence  allowed  on  special  order, 

in  what  cases,  340-348. 

proceedings,  papers,  and  depositions  in  another  cause,  341. 

depositions  in  a  cross-cause,  342. 

taken  in  the  exchequer,  343. 

or  in  admiralty,  343. 

of  parties,  344. 

of  interested  persons,  344. 
in  taking  an  account,  344. 
to  supply  omission,  345. 
to  correct  mistakes,  345-347. 
to  impeach  credit,  348. 
Exclusion  of  Evidence, 

1.  suppression  of  depositions,  349,  352. 

for  leading  interrogatories,  350. 
scandal  and  impertinence,  350. 
irregularity,  351. 
unfinished  examination,  352. 

2.  objections  at  the  hearing,  353-369. 

what  are  admissible,  353. 
to  outweigh  the  answer,  354. 
irrelevancy  of  proofs,  355  -  357. 
not  the  best  evidence,  359. 
incompetency  of  witness,  368,  369. 
Parol  Evidence, 

admissible  to  reform  writings,  360-364. 

to  raise  a  trust,  365. 

to  rebut  a  presumption,  366,  367. 

(See  Parol  Evidence.) 
Weight  of  Evidence, 

1.  admissions  in  pleadings,  370,  373,  374. 

oath  of  accounting  party,  371,  372. 

2.  testimony  of  witnesses,  S7o  -  378. 


INDEX. 


407 


EQUITY  —  Continv.e(l. 

3.  oj^c/at-t^s,  III.  379-385. 
their  requisites,  380. 
their  office,  381. 
how  sworn,  382,  383. 
where  taken,  383. 
their  effect,  384,  385. 
ERASURE.     (See  Alterations.     Private  Writings.) 
ESTOPPEL, 

principle  and  nature  of,  I.  22,  23,  ».,  204-210. 

by  deed,  who  are  estopped,  and  in  what  cases,  24,  25,  211. 

as  to  what  recitals,  26. 

en  pais,  207. 

(See  Admissions.) 

EVIDENCE, 

definition,  I.  1. 

moral,  what,  1. 

competent,  2. 

satisfactory  and  sufficient,  2. 

direct  and  circumstantial,  13. 

presumptive.     (See  Presumptions.) 

relevancy  of.  49  -  55. 

general  rules  governing  production  of,  50. 

must  correspond  with  the  allegations  and  be  confined  to  the  issue,  51. 

of  knowledge  and  intention,  when  material,  53. 

of  character,  when  material  to  the  issue,  54,  55. 

(See  Character.) 
proof  of  substance  of  issue  is  sufficient,  56  -  73. 
rules  of,  the  same  in  criminal  as  in  civil  cases,  65. 
the  best  always  is  required,  82. 
what  is  meant  by  best  evidence,  82. 
primary,  and  secondary,  what,  84. 
secondary,  whether  any  degrees  in,  84,  n. 

oral,  not  to  be  substituted  for  written,  where  the  law  requires  writing, 
86. 
for  written  contract,  87. 
for  any  writing  material  to  the  controversy,  88. 

unless  collateral,  89. 
for  written  declaration,  i7i  extremis,  161. 
when  it  may  be  given,  though  a  writing  exists,  90. 
exceptions  to  the  rule  which  rejects  secondary  evidence  in 

1.  case  of  public  records,  91. 

2.  official  appointments,  92. 


468  INDEX. 

EVIDENCE  —  Continued. 

3.  result  of  voluminous  facts,  accounts,  &c.,  I.  93. 

4.  inscriptions  on  monuments,  &c.,  94,  105. 

5.  examinations  on  the  voii'  dire,  95. 

6.  some  cases  of  admission,  96. 

7.  witness  subsequently  interested,  his  former  deposition  admissi- 

ble, 168. 
excluded  from  public  policy,  what  and  when,  236-  254. 
professional  communications,  237  —  248. 
proceedings  of  arbitrators,  249. 
secrets  of  State,  250,  251. 
proceedings  of  grand-jurors,  252. 

indecent  or  iryurious  to  the  feelings  of  others,  253,  344. 
communications  between  husband  and  wife,  254,  334-345. 
illegally  obtained,  still  admissible,  254  a. 
quantity  required  in  criminal  cases,  III.  29. 
what  amount  necessary  to  establish  a  charge  of  treason,  I.  255,  256, 

III.  246. 
what  to  establish  a  charge  of  perjury,  I.  257. 
to  overthrow  an  answer  in  chancery,  260. 

(See  Equity.) 
in  ecclesiastical  courts,  260  a,  n. 
written,  when  requisite  by  the  statute  of  frauds,  261—274. 
instruments  of,  307. 
oral,  what,  308. 
corroborative,  what,  381,  w. 

objection  to  competency  of,  when  to  be  taken,  421. 
foreign  rules  of,  not  admissible,  III.  28. 
suppression,  fabrication,  and  destruction,  34. 
in  criminal  prosecutions,  I.  248. 
in  proceedings  in  equity,  249  -  385. 
in  admiralty  and  maritime  causes,  386-467. 
in  courts-martial,  468  -  501. 
at  common  law,  how  far  the  same  in  equity,  250. 
EXAMINATION, 

on  criminal  charge,  when  admissible,  I.  224,  227,  228. 
signature  of  prisoner  unnecessary,  228. 
EXAMINATION   IN    BANKRUPTCY, 

not  admissible  against  the  banknipt,  on  a  criminal  charge,  I.  226. 
EXCHEQUER, 

judgments  in,  when  conclusive,  I.  525,  541. 
EXECUTION, 

of  deeds,  &c.,  proof  of,  I.  569,  572. 

(See  Deed.     Equity.     Private  Writings.) 


INDEX.  469 

EXECUTIVE, 

acts  of,  how  proved,  I.  479. 
EXECUTOR, 

admi^^sions  by,  I.  179. 
foreign,  544. 
EXECUTORS  AND  ADMINISTRATORS, 
profert  by,  of  letters  testamentary,  II.  338. 
character  of,  how  put  in  issue,  338. 

how  controverted,  344. 
when  they  must  sue  as  such,  338. 
character  of,  how  proved  when  plaintiff,  339. 
by  probate,  339,  343,  n. 
how  rebutted,  339. 
by  record's,  340,  341. 

administrator  de  bonis  non,  how  proved,  341. 

plea  of  statute  of  limitations,  when  avoided  by  new  promise  to,  342. 
de  son  tort,  when  liable  as  such,  343. 

to  what  extent,  345. 
de  son  tort,  retainer  by,  350. 
character  of,  burden  of  proving,  344. 
plea  of  ne  unques  executor,  consequence  of,  345. 

plene  administravit,  proof  of  assets  under,  346. 
what  is  evidence  of  assets,  347. 
devastavit,  347  a. 
how  rebutted,  348. 
when  this  plea  is  proper,  348,  n. 
plea  of  plene  administravit,  evidence  under,  350. 
retainer,  when  it  may  be  claimed,  349,  350. 
outstanding  judgments,  plea  of,  351. 
debts  of  higher  nature,  plea  of,  351. 
admissions  by  one  of  several  executors,  effect  of,  352. 
(See  Trover.) 
EXEMPLIFICATION, 

what,  and  how  obtained,  I.  501. 
EXPENSES    OF   WITNESS.     (See  Witnesses.) 
EXPERTS, 

who  are,  I.  440,  n. 

when  their  testimony  is  admissible  to  decipher  writings,  280. 
to  explain  terms  of  art,  280. 
to  explain  provincialisms,  &c.,  280. 
to  what  matters  they  may  give  opinions,  440,  576,  580,  n, 
EXTORTION, 

money  obtained  by,  II.  121. 


470  INDEX. 

F. 
FACTOR.     (See  Agent.) 
FAMILY, 

recognition  by,  in  proof  of  pedigree,  I.  103,  104,  134. 
(See  Hearsay.     Pedigree.) 
FEAR, 

what,  in  the  crime  of  robbery.  III.  231,  n. 
FEIGNED  ISSUE, 

when  it  may  be  ordered,  III.  337. 
on  what  terras,  337. 
whether  parties  may  be  examined,  338. 
course  of  proceeding,  339. 
FELONY, 

conviction  of,  incapacitates  witnesses,  I.  373. 
(See  Witnesses.) 
FIXTURES, 

what  are,  I.  271. 
FLEET   BOOKS.     (See  Puhlic  Books.) 
FORCIBLE    ENTRY, 

tenant  incompetent  as  a  witness,  I.  403. 
(See  Witnesses.) 
FORCIBLE  MARRIAGE, 

wife  competent  to  prove,  I.  343. 
FOREIGN    COURTS.     (See  Puhlic  Records  and  Documents.     Records 

and  Judicial  Writings.) 
FOREIGN   JUDGMENTS, 

of  infamy,  do  not  go  to  the  competency,  I.  376. 

proof  of,  514. 

in  rem,  effect  of,  543  -  545. 

in  personam,,  545  -  549. 

(See  Records  and  Judicial  Writings.) 
FOREIGN   LAWS, 
proof  of,  L  486,  488. 

(See  Public  Records  and  Documents.) 
FOREIGN    STATES.     (See  Judicial  Notice.    Puhlic  Records  and  Doc- 
uments.    Records  and  Judicial  Writings.) 
FORGERY, 

conviction  of,  incapacitates  witness,  I.  373,  374. 
party  whose  name  is  forged,  when  competent,  414. 

(See  Private  Writings.) 
punishable  by  statutes.  III.  102. 
defined,  103. 


INDEX.  471 

FORGE  RY  -^  Continued. 

in  what  cases  it  may  be  committed,  HI.  103. 
essentials  of,  103. 
indictment  for,  104. 
proof  of,  generally,  104. 
resemblance,  105. 
falsity,  106. 
writing  must  be  produced,  107. 
variance  in,  108. 
false  personation,  109. 
false  representation,  109. 
fictitious  name,  109. 
proof  of  uttering,  110. 

guilty  knowledge,  111. 
place  of  committing,  112. 
existence  of  bank,  113. 
office  of  president,  113. 
FORMER  JUDGMENT, 

when  a  good  bar.  III.  35,  36. 
how  pleaded,  36. 
how  proved,  36. 
how  rebutted,  or  answered,  38. 
FRAUD, 

general  presumption  against,  I.  34,  35,  80. 
when  presumed  in  equity,  III.  254. 

(See  Presumptions.     Equity.) 
FRAUDS, 

statute  of,  I.  262-274. 

(See  Equity.     Writings.) 

G. 

GAME   LAWS, 

want  of  qualifications  under,  must  be  proved  by  the  affirmant,  I.  78. 
GAZETTE, 

in  what  cases  admissible,  I.  492. 

(See  Public  Records  and  Documents.) 
GOVERNMENT, 

acts  of,  how  proved,  I.  383,  478,  491,  492. 

(See  Admiralty,  Sfc.     Public  Records  and  Documents.) 
GOVERNOR, 

of  a  State  or  Province,  when  not  bound  to  testify,  I.  251. 
provincial,  communications  from,  privileged,  251. 
(See  Privileged  Communications.) 


472  INDEX. 

GRAND-JURY, 

transactions  before,  how  far  privileged,  I.  252. 

(See  Privileged  Communications.) 
GRANT, 

when  presumed,  I.  45. 
conclusively,  17. 
GUARDIAN, 

admission  by,  I.  179. 
GUILTY  POSSESSION, 

what,  III.  31. 

evidence  of,  I.  34,  35,  IIL  31-33,  57. 


H. 
HABEAS   CORPUS, 

ad  testificandum,  1.  Z\2.     (See  Witnesses.) 
HANDWRITING, 

attorney  competent  to  prove  client's  writings,  I.  242. 
proof  of,  in  general,  576-581. 

(See  Private  Writings.) 
HEARSAY, 

what  it  is,  I.  99,  100. 
what  is  not  hearsay, 

information,  upon  which  one  has  acted,  101. 
conversation  of  one  whose  sanity  is  questioned,  101. 
answers  given  to  inquiries  for  information,  101,  574. 
general  reputation,  101,  101  a. 
expressions  of  bodily  or  mental  feelings,  102. 
complaints  of  injury,  recenti  facto,  102. 
declarations  of  family,  as  to  pedigree,  103,  104,  104  a,  134. 
inscriptions,  105. 

declarations  accompanying  and  qualifying  an  act  done,  108,  109. 
in  disparagement  of  title,  109. 
of  other  conspirators,  111. 
of  partners,  112. 
of  agents,  113,  114. 

of  agents  and  employees  of  corporations,  114  a. 
entries  by  third  persons,  115-117,  120. 
indorsements  of  partial  payment,  121,  122. 
when  and  on  what  principle  hearsay  is  rejected,  124,  125. 
when  admissible,  by  way  of  exception  to  the  rule, 

1.  in  matters  of  public  and  general  interest,  128-140. 
restricted  to  declarations  of  persons  since  dead,  130. 


INDEX.  473 

HEARSAY  —  Continued. 

and  concerning  ancient  rights,  I.  130. 

ante  litem  niotam,  131  -  134. 
situation  of  the  declarant,  135. 
why  rejected  as  to  private  rights,  137. 

as  to  particular  facts,  138. 
includes  writings  as  well  as  oral  declarations,  139. 
admissible  also  against  public  rights,  140. 

2.  in  matters  of  ancient  possessions,  141  -  146. 

boundaries,  when,  145,  n. 
perambulations,  146. 

3.  declarations  against  interest,  147-  155. 

books  of  bailiffs  and  receivers,  150. 

private  persons,  150. 
the  rule  includes  all  the  facts  related  in  the  entry,  152. 
the  party  must  have  been  a  competent  witness,  153. 
in  entries  by  agents,  agency  must  be  proved,  154. 
books  of  deceased  rectors,  &c.,  155. 

4.  dying  declarations,  156—  162. 

principle  of  admission,  156  —  15S. 

declarant  must  have  been  competent  to  testify,  159. 

circumstances  must  be  shown  to  the  court,  160. 

if  written,  writing  must  be  produced,  161. 

weakness  of  this  evidence,  1 62. 

of  husband  or  wife,  when  admissible  against  the  other,  345,  346. 

5.  testimony  of  witnesses  since  deceased,  163  —  166. 

whether  extended  to  case  of  witness  sick  or  abroad,  1 63,  n. 
must  have  been  a  right  to  cross-examine,  164. 
the  precise  words  need  not  be  proved,  165. 
may  be  proved  by  any  competent  witness,  166. 
witness  subsequently  interested,  167,  168. 
declarations,  and  replies  of  persons  referred  to,  admissible,  182. 
of  interpreters,  183. 
HEATHEN, 

not  incompetent  as  a  witness,  and  how  sworn,  I.  371. 
HEIR, 

apparent,  a  competent  witness  for  ancestor,  I.  390. 
when  competent  as  witness,  392. 
proof  of  heirship,  II.  355. 

death  of  ancestor,  354. 
liability  of,  356-358. 
plea  o'i  riens  per  descent,  359. 
proof  of  as-^ets,  360. 

by  lands  in  a  foreign  State,  361. 


474  INDEX. 

HERALD'S    BOOKS, 

when  admissible,  I.  105, «. 
HIGHWAY, 

judgment  for  non-repair  of,  when  admissible  in  favor  of  other  defend- 
ants, I.  534. 

(See  Way.) 
HISTORY, 

public,  when  admissible,  I.  497. 
HOMICIDE, 

when  malice  presumed  from,  I.  34,  lU.  149,  end  of  «.  4. 
what,  HI.  114. 
justtjiable,  when,  115. 
excusable,  when,  116,  117. 
ancient  distinction  between,  118. 
felonious,  when,  119. 
manslaughter,  defined,  119. 

indictment  for,  120. 

voluntary,  121. 

involuntary,  121. 

proof  of,  121. 
upon  provocation,  without  malice,  122,  124,  125. 
in  execution  of  process,  123. 
upon  provocation,  with  malice,  126. 

rebutting  proof,  127. 
involuntary  manslaughter,  128. 

by  unlawful  act,  128. 

by  lawiul  act,  129. 
murder,  what,  130. 

indictment  for,  130. 
proof  of  death,  131  —  133. 

its  unlawfulness,  134. 

by  poison,  135. 

infanticide,  136. 

by  the  prisoner,  137. 

or  his  procurement,  138. 

by  wound  not  mortal,  139. 
identification  of  mutilated  remains,  133. 
mode  of  killing,  140. 

allegation  to  be  substantially  proved,  140. 
variance  in  proof  of  the  cause  of  death,  141. 
by  compulsion  of  the  deceased  to  do  the  mortal  act,  143. 
proof  of  place  of  the  crime,  113. 

time,  143. 
malice,  what,  14,  n.,  144. 


INDEX. 


475 


HOMICIDE  —  Continued. 

proof  of,  HI.  144,147. 

express,  145. 

implied,  14,  142-147,  149,  end  of  n.  4. 

when  negatived  by  drunkenness,  148; 
HONORARY   OBLIGATION, 

does  not  incapacitate  witness,  I.  388. 
HOUSE.      (See  Legislature.) 
HUSBAND    AND   WIFE, 

intercourse  between,  when  presumed,  I.  28, 

coercion  of  wife  by  husband,  when  presumed,  28. 

admissions  by  wife,  when  good  against  husband,  185. 

communications  inter  sese,  privileged,  254,  334. 

no  matter  when  the  relation  begun  or  ended,  336. 

wife  competent  witness  after  husband's  death,  when,  338. 

none  but  lawful  wife  incompetent  as  witness,  339. 

whether  husband's  consent  removes  incompetency,  340. 

rule  applies  when  husband  is  interested,  341,  407. 

competent  witness  in  collateral  pioceedings,  342. 

exceptions  to  the  rule  in  favor  of  wife,  343,  344. 

rule  extends  to  cases  of  treason,  semb.  345, 

wife  not  competent  witness  for  joint  conspirators  with  her  husband, 
407. 

when  they  may  be  accessories  to  each  other,  IH.  48. 

I. 
IDENTITY, 

proof  of,  when  requisite,  I.  381,  493,  575,  577,  II.  50,  278  d. 
by  attorney,  I.  245. 

of  person,  proof  of,  when  requisite,  II.  50,  278  d. 

of  close,  625. 
IDIOT, 

incompetent  as  a  witness,  I.  365. 
IGNORANCE, 

of  law,  no  excuse.  III.  20. 

of  fact,  when  an  excuse,  21. 
IMMEDIATELY, 

legal  meaning  of  the  word.  III.  228,  n. 
INCOMPETENCY.     (See  Wiinesses.) 
INCORPOREAL   RIGHTS, 

how  affected  by  destruction  of  deed,  I.  568. 
INDEMNITY, 

when  it  restores  competency,  I.  420. 


476 


INDEX. 


INDICTMENT, 

inspection  and  copy  of,  right  to,  I,  471. 
its  essential  requisites.  III.  10,  12, 
what  is  put  in  i-^sue  by  plea  of  not  guilty,  12,  30. 
when  it  must  state  and  prove  names,  22. 
.    burden  of  proof  of  negative  averments,  24,  n, 
against  accessories,  49. 
for  arson,  51. 
assault,  58. 
barratry,  66. 
blasphemy,  68. 
embracery,  89,  n. 
manslaughter,  120. 
murder,  130. 
larceny,  151. 
libel,  166. 
maintenance,  181. 
nuisance,  185. 
perjury,  189. 
polygamy,  204. 
robbery,  223. 
INDORSEE, 

how  affected  by  admissions  of  indorser,  I.  190. 
(See  Admissions.) 
INDORSEMENT, 

of  part  payment,  on  a  bond  or  note,  I.  121,  122. 
INDORSER, 

when  a  competent  witness,  I.  190,  383,  385. 
(See  Witnesses.) 
INDUCEMENT, 

when  it  must  be  proved,  I.  63,  n. 
INFAMY, 

renders  a  witness  incompetent,  I.  372-376. 
how  removed,  377,  378. 

(See  Witnesses.) 
INFANCY, 

proof  of,  rests  on  the  party  asserting  it,  I.  81. 

(See  Onus  Probandi.) 
burden  of  proof  of,  II.  262. 
evidence  of,  363. 
plea  of,  how  avoided,  364. 
necessaries,  what,  365,  366. 
whether  or  not  necessaries,  by  whom  determined,  365,  n.  4. 


INDEX.  477 

INFANCY—  Continued. 

may  consist  of  money  lent,  II.  365,  n. 
evidence  of,  how  rebutted,  366,  367. 
new  promise  by,  367. 
no  defence  in  actions  ex  delicto,  368. 
INFERIOR   COURTS, 

inspection  of  the  records,  I.  473. 
proof  of  their  records,  513. 

(See  Public  Records  and  Documents.  Records  and  Judicial  Writings.) 
INFIDEL, 

incompetent  as  a  witness,  I.  368-372. 
(See    Witnesses.) 
INFORMER, 

competency  of,  as  a  witness,  I.  412-415. 
(See    Witnesses.) 
INHABITANT, 

admissions  by,  I.  175. 
when  competent  as  a  witness,  381. 
rated,  331,  w. 
INNOCENCE, 

presumed,  I.  34,  35. 

(See  Presumptions.) 
INQUISITIONS, 
proof  of,  I.  515. 
admissibility  and  effect  of,  556. 
INSANITY, 

presumed  to  continue  after  being  once  proved  to  exist,  I.  42. 
when  it  is  a  good  defence,  or  not,  in  civil  cases,  11.  369,  370. 

in  criminal  cases,  372,  III.  6. 
how  proved,  II.  371,  689,  III.  5. 
proper  form  of  inquiry  of  witness,  5. 
what  constitutes  it,  373. 
from  drunkenness,  when  it  is  a  defence,  374. 
(See  Lunacy.) 
INSCRIPTIONS, 

provable  by  secondary  evidence,  I.  95,  105. 
INSOLVENT, 

omission  of  a  claim  by,  in  schedule  of  debts  due  to  him,  I.  196. 
(See  Admissions.) 
INSPECTION, 

of  public  records  and  documents,  I.  471  -  478. 

(See  Public  Records  and  Documents.) 
of  private  writings,  559  -  562. 

(See  Private  Writings.) 


478  INDEX. 

INSTANCE    COURTS,   III-    387. 

(See  Admiralty,  &c.) 
INSTRUCTIONS, 

to  counsel,  privileged,  I.  240,  241. 

(See  Privileged  Communications.) 
INSURANCE, 

declaration  on  marine  policy,  II.  376. 
proof  (1.)  of  the  policy,  377. 
(2.)  interest,  378-381. 
legal  or  equitable,  379. 
proof  of  interest  in  tlie  goods,  380. 

under  open  or  valued  policy,  381. 
(3.)  inception  of  risk,  382. 
(4.)  performance  of  conditions,  383. 

compliance  with  warranties,  383,  884. 
sailing  with  convoy,  384. 
(5.)  Zoss,  385-894. 

proximate  cause  of,  387. 
by  perils  of  the  sea,  387. 
by  perils  of  rivers,  387,  n. 
by  capture,  387,  388. 
■when  voyage  licensed,  389. 
by  barratry,  390. 
by  stranding,  391. 
total  or  partial,  392. 
proved  by  sliipwreck,  392. 
by  ahandonment,  accepted,  392. 
amount  of,  proved  by  adjustment,  393. 
vreliminary  proof  of,  394. 
matters  in  defence,  viz. : 

misrepresentation  and  concealment,  396,  397. 
burden  of  proof,  398. 
breach  of  warranties,  399  -  401. 
unseaworthiness,  400,  401. 
illegality  of  voyage,  402. 
want  of  documents,  402. 
want  of  neutrality,  402. 
deviation,  403. 
against  fire,  declaration  in,  404. 
proof  of  loss,  405. 

by  lightning,  without  combustion,  405,  n. 

gross  negligence  of  assured,  405,  n. 

proof  of  loss,  performance  of  conditions,  406. 


INDEX.  479 

INSURANCE  —Con^mtiec?. 

rule  of  e-timation  of  damages,  11.  407. 
defences  in,  408. 
upon  lives,  409. 

nature  of  interest  insurable,  409. 
INTENT 

when  material  to  be  proved,  III.  13. 
when  inferred  by  law,  13,  14. 
evidence  of,  15-19. 
must  be  proved  as  alleged,  17. 
proof  of  one,  when  several  are  charged,  16. 
general  intent  sufficient,  18. 
INTEREST, 

of  witness,  effect  of,  when  subsequently  acquired,  I.  167,  418-420. 
subsequent,  does  not  exclude  his  previous  deposition  in  chancery,  168. 
whether  it  does  at  law,  1 68. 

(See  Witnesses.     Adyniralty,  &c.) 
INTERPRETATION, 

defined,  I.  277. 
INTERPRETER, 

his  declarations,  when  provable  aliunde,  I.  183. 
communications  through,  when  privileged,  239. 
INTESTATE, 

his  declarations  admissible  against  his  administrator,  I.  189. 
(See  Admissions.) 
ISSUE, 

proof  of,  on  whom,  I.  74-81. 

(See  Onus  Prohandi.) 
what  is  sufficient  proof  of,  I.  56  -  73. 

(See  Allegations.      Variance.) 
what,  II.  3. 
how  formed,  3,  4. 
general  and  special,  5. 
general,  in  assumpsit,  its  extent,  6  —  8. 
in  English  practice,  8. 
in  American  practice,  8. 
substance  only  to  be  proved  in  criminal  cases,  III.  23. 
in  murder,  140. 


JEOPARDY   OF   LIFE   OR   LIMB, 
what  constitutt'S,  III.  37. 


480  INDEX. 

JEW, 

how  to  be  sworn,  I.  371. 
JOINT  OBLIGOR, 

competency  of,  I.  395. 
JOURNALS.     (See   Legislature.) 
JUDGE   AND   JURY, 

their  respective  provinces,  I.  49,  160,  219,  277,  n.,  365,  w.,  IL  28  a, 
186,  442,  «.,  490,  504,  n.,  605,  662. 

judge,  when  incompetent  as  a  witness,  I.  166,  249,  364. 

his  note?,  when  admissible,  166. 

competency  of  jurors,  252,  252  a,  363,  n. 
JUDGMENTS.     (See  Records  and  Judicial  Writings.) 
JUDICIAL   NOTICE, 

of  what  things  taken  at  law,  I.  4,  5,  6,  6  a. 
in  equity,  IIL  269,  270,  271. 
JURISDICTION, 

of  foreign  courts  must  be  shown,  I.  540,  541. 

(See  Records  and  Judicial  Writings.) 
JURY,  TRIAL    BY, 

whether  demandable  of  right  in  equity,  III.  263-266. 

K. 

KINDRED.     (See  Family.     Hearsay.     Pedigree.) 

L. 

LARCENY, 

proof  of,  from  guilty  possession,  I.  11,  34,  III.  31,  32,  33. 
*  (See  Presumptions.     Guilty  Possession.) 

definition  of,  III.  150. 

indictment  for,  151. 

proof  of  the  place,  152. 
time,  152. 
value,  153. 

chief  points  to  be  proved,  154. 

caption  and  asportation,  154. 

severance  of  owner's  possession,  155. 

custody  by  the  thief,  155. 

restitution  no  defence,  156. 

felonious  intent,  proof  of,  157,  158. 

distinction  between  larceny  and  trespass  or  malicious  mischief,  157. 

delivery  of  goods  by  wife  of  owner,  158. 

goods  found,  159. 


INDEX.  481 

LARCENY — Continued. 

deposited  with  prisoner,  HI.  159,  162. 
obtained  by  stratagem,  160. 

proof  of  ownership,  161. 

by  bailee  of  the  goods,  162. 

bailment,  how  disproved,  162. 

of  wild  animals,  1 63. 

of  things  part  of  the  realty,  1 63. 
LAW  AND   FACT,  L  49.     (See  Judge  and  Jury.) 
LEADING   QUESTIONS, 

what,  and  when  permitted,  I.  434,  435,  447. 
(See  Witnesses.) 
LEASE, 

when  it  must  be  by  writing,  L  263,  264. 

expounded  by  local  custom,  when,  294. 
LEGAL  ESTATE, 

conveyance  of,  when  presumed,  I.  46. 
LEGATEE, 

when  competent  as  a  witness,  I.  392. 
LEGISLATURE, 

transactions  of,  how  proved,  I.  480,  481,  482. 

(See  Public   Records   and  Documents.) 

proceedings  in,  how  far  privileged  from  disclosure,  251,  n. 
LEGITIMACY, 

when  presumed,  I.  28. 
LESSEE, 

identity  of,  with  lessor,  as  party  to  suit,  L  535. 
LESSOR, 

of  plaintiff  in  ejectment,  regarded  as  the  real  party,  I.  535. 
LETTERS, 

post-marks  on,  I.  40. 

parol  evidence  of  contents  of,  87,  88. 

proof  of  by  letter-book,  116. 

cross-examination  as  to,  88,  89,  463  -  466. 

addressed  to  one  alleged  to  be  insane,  101. 

written  by  one  conspirator,  evidence  against  others,  111. 

of  wife  to  husband,  when  admissible,  102. 

whole  correspondence,  when  it  may  be  read,  201,  n. 

prior  letters,  by  whom  they  must  be  produced,  201,  n. 

(See     Courts-Martial.      Evidence.       Hearsay.       Parol    Evidence. 
Witnesses.) 
LETTERS  ROGATORY, 

what,  I.  320. 
VOL.  in.  31 


482  INDEX. 

LEVYING  WAR, 

what  constitutes  it,  III.  242,  n. 
LIABILITY  OVER, 

its  effect  on  competency  of  witness,  I.  393  -  897 
(See  Witnesses.) 
LIBEL,  in  criminal  law, 

difficulty  of  defining,  III.  164. 
definition  of,  164,  n. 
defined  by  statutes,  165. 
indictment  for,  166. 
when  written  proof  of,  167. 
proof  of  malice,  168. 

publication,  169-172. 

within  the  county,  173. 

colloquium,  174. 

innuendo,  172. 
when  justified  by  the  truth,  176,  177. 
what  may  be  proved  in  defence,  178. 
right  of  jury,  in  trials  for,  179. 
by  corporation,  note  to  179. 
by  telegraph,  note  to  179. 
LIBEL   AND   SLANDER,  in  civil  cases, 

to  be  defined  by  the  court,  and  tried  by  the  jury,  II.  411. 

declarations  in,  410. 

points  of  plaintiff's  proof,  410. 

special  character,  412. 

other  prefatory  allegations,  413. 

publications  of  words,  414. 
by  defendant,  415. 
publications  of  words,  by  his  agents,  415,  416, 1.  36,  234. 
points  of  plaintiff's  proof,  publication  of,  when  printed,  II.  416. 

by  letters,  416. 

colloquium  and  innuendoes,  417. 

malice,  418,  419,  422. 

damages,  420. 
defence  under  the  general  issue,  421-425. 

when  the  truth  may  be  given  in  evidence,  421. 

words  spoken  in  discharge  of  duty,  421. 
in  confidence,  421. 
in  honest  belief  of  their  truth,  421. 
defence,  whole  libel  to  be  read,  423. 
damages,  evidence  in  mitigation  of,  424,  425. 

evidence  of  character,  when  admissible,  426. 


INDEX.  48ft 

LIBEL   AND   SLANDER,  in  civil  cases  — Continued. 
justification  of,  degree  of  proof  required,  IL  4J26. 
charwe  of  violation  of  professional  confidence,  427. 
slander  of  title,  428. 
other  special  damages,  428. 
course  of  trial,  429. 
LICENSE, 

must  be  shown  by  the  party  claiming  its  protection,  I.  79. 
proof  of,  II.  627,  643. 
LIMITATIONS, 

in  bar  of  rights  of  entry,  II.  430. 
of  action,  431. 

statute  of,  when  it  may  bar  cause  of  action  accrued  before  its 
passage,  448,  n.  4. 
avoided  by  suing  out  of  process,  431. 
new  suit,  after  abatement,  432. 
time,  from  period  or  act  computed,  433  -  435. 

not  arrested  when  once  begun  to  run,  439. 
avoided  by  showing  absence,  out  of  the  jurisdiction.  437. 
when  in  case  of  joint  liabilities,  438. 
how  rebutted,  439. 
new  promise,  440  -  445. 
acknowledgment  of  indebtment,  440. 
what  amounts  to,  441  -  445. 
when  not  admissible,  446. 
merchants'  accounts,  what,  447. 
fraud  in  defendant,  448. 
LIS   MOTA, 

what,  and  its  effect,  L  131  - 134. 
LLOYD'S    LIST, 

how  far  admissible  against  underwriters,  I.  198. 
LOG-BOOK, 

how  far  admissible,  I.  495. 

(See  Admiralty,  &c.) 

LOSS, 

of  private  writings,  proof  of,  I.  558. 
of  records,  84,  n.,  508. 

(See  Evidence.     Private  Writings.     Records  and  Judicial  Writings.^ 
LUNACY, 

when  presumed  to  continue,  L  42. 
inquisition  of,  its  admissibility  and  effect,  556. 
(See  Insanity.') 


484  INDEX. 

M. 

MAGISTRATE, 

confessions  made  to,  I.  216,  222,  224,  227. 

(See  Confessions  of  Guilt.)  . 

MAINTENANCE, 
what,  III.  180. 
indictment  for,  181. 
proof  of,  181. 
defence,  182. 

biiying  disputed  title,  183. 
MALICE, 

when  presumed,  I.  18. 
defined,  II.  14,  n.,  144. 
evidence  of,  15  - 19,  144,  147,  168 
express,  145. 

implied,  14,  15,  145-147,  168. 
whether  disproved  by  proof  of  drunkenness,  148. 
MALICIOUS  PROSECUTION, 

nature  of,  and  what  amounts  to,  II.  449. 
whether  it  lies  against  a  corporation,  453,  n. 
action  for,  proofs  by  plaintiff,  450  -456. 

proof  of  the  prosecution,  450,  451. 

prosecution  ended,  452. 
maKce  and  want  of  probable  cause,  453. 

burden  of  proof  of,  454. 

probable  cause,  what  is,  454,  455. 

proof  by  defendant,  457. 

damages,  456. 
defence  in  this  action,  457. 

by  proof  of  plaintiff's  bad  character,  when,  458. 

advice  of  counsel,  459. 
testimony  of  defendant  given  before  grand-jury,  admissible  hi,  I.  852. 
judgment  of  acquittal,  when  admissible  in,  538. 
copy  of  judgment  of  acquittal,  whether  plaintiff  entitled  to,  471. 
MALICIOUS   SHOOTING, 

wife  competent  to  prove,  I.  343. 
MAPS, 

when  evidence,  I.  139. 
MARRIAGE, 

nature  of  the  contract  of,  and  when  valid,  II.  460. 
modes  of  proof  of,  461. 

by  reputation,  I.  107,  IL  462. 

by  admissions  of  parties,  462. 


INDEX.  485 

MARRIAGE  —  Continued. 
by  conduct,  II.  462. 
by  written  document,  463. 
how  rebutted,  464. 
forcible,  wife  admissible  to  prove,  343. 
second,  in  case  of  polygamy,  when  proved,  339. 
and  time  of,  included  in  pedigi'ee,  104. 
when  presumed,  from  cohabitation,  27,  207. 
foreign  sentences,  as  to,  effect  of,  544,  545. 
proof  of,  342,  343,  484,  493. 

(See  Husband  and   Wife.     Polygamy.     Public  Records  and  Docu- 
ments.    Records  and  Judicial  Writings.^ 
MASTER, 

when  servant  witness  for,  I.  416. 

when  not,  396. 

when  liable,  II.  232  a. 

(See  Case.) 
MASTER  IN   CHANCERY, 

subjects  of  his  jurisdiction,  HI.  832. 
his  authority,  333. 
may  examine  parties,  833,  335. 
may  examine  witnesses,  333,  334. 

call  for  books  and  papers,  333. 
rules  of  proceeding,  335,  n. 
when  he  may  re-examine  witnesses,  336. 
MEDICAL    WITNESS, 
not  privileged,  I.  248. 
may  testify  to  opinions,  when,  440. 
when  not,  441. 
MEMORANDUM, 

to  refresh  memory  of  witness,  I.  438  -  439. 
(See  Witnesses.) 
MISTAKE, 

admissions  by,  effect  of,  I.  206. 

of  law  apparent  in  a  foreign  judgment,  effect  of,  547,  n. 
when  it  excuses,  III.  21. 
MIXED   QUESTIONS,  I.  49. 

(See  Judge  and  Jury.) 
MONEY  COUNTS, 

what  evidence  is  admissible  under,  II.  112  - 125,  129  a. 
MONUMENTS.     (See  Boundary.     Inscriptions.) 
MURDER, 

when  malice  presumed,  I.  18. 

(See  Homicide.) 


486  INDEX. 

N. 
NAMES, 

wlien  to  be  stated  and  proved  in  indictments,  III.  22. 
NAVY  OFFICE, 
books  of,  I.  493. 

(See  Public  Records  and  Documents^ 

NEGATIVE, 

when  and  by  whom  to  be  proved,  I.  78  -81. 
(See  Onus  Prohandi.) 
NOLLE  PROSEQUI, 

effect  of,  to  restore  competency,  I.  356,  363. 
(See  Witnesses.) 
NON-ACCESS, 

husband  and  wife,  when  incompetent  to  prove,  I.  28,  253. 
NOTICE, 

to  produce  writings,  I.  560-563. 

(See  Equity.     Private  Writings.) 
NOTORIETY, 

general,  when  evidence  of  notice,  I.  138. 
whether  noticeable  by  a  judge,  364. 
NUISANCE, 

what  is,  II.  465  -  469,  III.  184. 
to  dwelling-houses,  II.  466. 
to  lands,  467. 

to  incorporeal  hereditaments,  468. 
to  reversionary  interests,  469. 
action  for,  is  local,  470. 
proofs  by  plaintiff,  470  -  474. 
possession,  or  title,  471. 
injury  by  defendant,  472. 

when  lessor  liable  for,  472. 
injury,  when  by  plaintiff's  own  fault,  473. 
when  by  mutual  faults,  473. 
when  by  defendant's  own  fault,  473. 
proximate  cause  of,  473. 
damages,  474. 
defences  to  this  action,  475,  476. 

by  proof  of  abandonment  of  right  by  plaintiff,  476. 
indictment  for,  III.  185. 
proof  of,  186. 
defence,  187. 
NULLUM  TEMPUS   OCCURRIT   REGL 
when  overthrown  by  presumption,  I.  45. 


INDEX.  487 

O. 

OATH, 

its  nature,  I.  328. 

in  litem,  when  admissible,  348,  349,  350,  352,  558. 
how  administered,  371. 
suppletory,  III.  410. 
decisory,  411. 

juramejitum  veritatis,  412,  n. 
juramentum  affectionis,  412,  n. 
OBLIGEE, 

release  by  one  of  several,  binds  all,  I.  427. 
(See  Witnesses.) 
OBLIGOR, 

release  to  one  of  several,  discharges  all,  I.  427. 
(See  Witnesses.) 
OBLITERATION.     (See  Alteration.) 
OFFICE, 

appointment  to,  when  presumed,  I.  83,  92. 
OFFICE   BOOKS.     (See  Public  Records  and  Documents.) 
OFFICER, 

de  facto,  prima  facie,  proof  of  appointment,  I.  89,  92,  III.  483. 
OFFICIAL   COMMUNICATIONS, 
when  privileged,  I.  249  -  252. 

(See  Privileged  Communications.) 
ONUS  PROBANDI, 

devolves  on  the  affirmant,  I.  74. 

on  party  producing  a  witness  deaf  and  dumb,  366. 
on  party  alleging  defect  of  religious  belief,  370. 
in  probate  of  wills,  77. 
exceptions  to  the  rule :  — 

1.  when  action  founded  on  negative  allegation,  78. 

2.  matters  best  known  to  the  other  party,  79. 

3.  allegations  of  criminal  neglect  of  duty,  80. 

4.  other  allegations  of  a  negative  character,  81. 
in  indictments.  III.  24. 

of  negative  averments  in  indictments,  24. 

in  civil  cases,  I.  78-81. 
in  cases  of  suppression,  fabrication,  or  destruction  of  evidence.  III.  34. 
in  homicide,  140. 
in  equity,  253. 
in  admiralty,  404. 
OPINION, 

when  evidence  of  it  is  admissible,  I.  440,  576,  580,  n. 

(See  Ad7niralty,  &c.      Courts-Martial.     Exjjerts.) 


488  INDEX. 

OVERT  ACT, 

proof  of,  in  treason,  I.  235. 

(See  Treason.) 
OWNER, 

of  property  stolen,  a  competent  witness,  I.  412. 
OWNERSHIP, 

proved  by  possession,  I.  34. 

(See  Admiralty,  &c.) 


P. 
PAPERS, 

private,  when  a  stranger  may  call  for  their  production,  I.  246. 
(See  Private  Writings.) 
PARDON, 

its  effect  to  restore  competency,  I.  377,  378. 
(See    Witnesses.) 
PARISH, 

boundaries,  proof  of,  I.  145. 

judgment  against,  when  evidence  for  another  parish,  534. 

books,  493. 

(See  Public   Records   and  Documents.     Boundaries.) 
PARISHIONER, 

rated,  admissions  by,  I.  179. 
PARLIAMENT, 

proceedings  in,  how  far  privileged  from  disclosure,  I.  251,  n. 
PAROL  EVIDENCE, 

its  admissibility  to  explain  writings,  I.  275  -  305. 
principle  of  exclusion,  276. 

the  rule  excludes  only  evidence  of  language,  277,  282. 
in  what  sense  the  words  are  to  be  understood,  278. 
the  rule  of  exclusion  is  applied  only  in  suits  between  the  parties,  279. 
does  not  exclude  testimony  of  experts,  280. 
illustrated  by  examples  of  exclusion,  281. 
does  not  exclude  other  writings^  282. 
is  admissible  to  show  the  written  contract  originally  void,  284. 
want  of  consideration,  284,  304. 
fraud,  284. 
illegality,  284,  304. 
incapacity  or  disability  of  party,  284. 
want  of  delivery,  284. 
admissible  to  explain  and  contradict  recitals,  when.  285. 

to  ascertain  the  subject,  and  its  qualities,  &c.,  28G-28S,  301. 


INDEX.  489 

PAROL  EVIDENCE  — Cfcn^mwecf. 

these  rules  apply  equally  to  wills,  I.  287,  289-291. 

Mr.  Wigram's  rules  of  interpretation  of  wills,  287,  n. 

of  any  intrinsic  circumstances  admissible,  288,  388  a. 

of  usage,  when  and  how  far  admissible,  292,  293,  294. 

who  must  determine  correct  reading  of  a  paper,  288  h. 

to  annex  incidents,  admissible,  294. 

■whether  admissible  to  show  a  particular  sense  given  to  common  words, 

295. 
admissible  to  rebut  an  equity,  296. 

to  reform  a  writing,  296  a,  III.  360-364. 
to  rebut  a  presumption,  366. 
to  raise  a  trust,  365. 
to  explain  latent  ambiguities,  297-300. 
to  apply  an  instrument  to  its  subject,  301.  • 

to  correct  a  false  demonstration,  301. 
to  show  the  contract  discharged,  302,  304. 
to  prove  the  substitution  of  another  contract  by  parol,  303,  304. 
to  show  time  of  performance  enlarged,  or  damages  waived,  304. 
to  contradict  a  receipt,  when,  305. 
to  explain  a  bill  of  parcels,  305,  n. 
PARSON,  . 

entries  by  deceased  rector,  &c.  when  admissible,  I.  155. 
(See    Hearsay^ 
PARTICEPS   CRIMINIS, 

admissible  as  a  witness,  I.  379. 
PARTNERS, 

mutually  affected  by  each  other's  acts,  I.  112. 

when  bound  by  new  promise  by  one  to  pay  a  debt  barred  by  statute, 

112,  n. 
admissions  by,  177,  189,  207,  527  a. 

(See    Witnesses.) 
PARTNERSHIP, 

evidenceof,  II.  477-479. 

in  actions  by  partners,  478. 
in  defence,  480. 
as  between  the  partners,  481. 
as  against  them,  482-484. 

must  extend  to  all,  483. 
by  common  report,  483. 
by  admissions  of  the  partners,  484. 
how  rebutted,  485. 
when  the  partnei's  are  competent  witnesses,  486. 


4yO  INDEX. 

PARTIES, 

generally  incompetent  as  witnesses,  I.  329,  330. 
competent,  when,  348  -363. 

(See  Admissions.     Witnesses.) 
PATENTS, 

remedy  for  infringement  of  right,  II.  487. 
declaration  for,  487,  n. 
proofs  on  plaintiff's  part,  487-  498. 
letters-patent,  488. 
specification,  488. 
how  expounded,  489. 
sufficiency  of,  490. 
assignment,  491. 
invention  his  own,  492. 
invention  new,  and  reduced  to  practice,  493,  495. 

useful,  493,  495. 
infringement,  496,  497,  506. 
damages,  496. 

identity  of  machines,  498,  506. 
purchaser  a  competent  witness,  499. 
defences,  and  special  notices  of,  500. 

by  evidence  of  previous  use,  501,  501  a,  502. 

in  a  foreign  country,  502. 
subsequent  patent,  503. 
duplicity  of  patent,  503. 
unlawfulness,  503. 
injurious  tendency,  503,  505. 
abandonment  by  patentee,  504. 
dedication  to  public,  504. 
defective  specification,  505. 
disclaimer,  when  it  may  be  made,  507. 
other  violators  of,  competent  witnesses,  508. 
adverse  patentees,  competent  witnesses,  508. 
copyright,  action  for  infringing,  510. 
proofs  by  plaintiff,  511  -514. 
entry  of  coiiyright,  511. 
authorship,  512. 
assignment,  513. 
infringement,  514. 
defences  in  this  action,  515. 
when  injunction  may  issue,  515. 
PAYEE, 

admissibility  of,  to  impeach  the  security,  I.  383  -  385. 
(See  Witnesses.) 


INDEX.  '^^^ 


PAYMENT, 

provable  by  parol,  I.  302  -  305. 
of  money,  effect  of,  to  restore  competency,  408  -  4d0. 
(See  Witnesses.) 

what  is,  n.  516. 

when  it  must  be  pleaded,  516. 

by  whom  to  be  proved,  516. 

receipt  given,  when  to  be  produced,  517. 

proof  of,  when  made  to  agent  or  attorney,  518. 

to  order,  518. 
by  higher  security  given,  519. 
by  debtor's  own  security,  519,  520. 
by  novation,  what,  519. 
by  debtor's  check,  520. 
by  negotiable  note,  or  bill,  520. 
by  note  not  negotiable,  521. 
by  bank-notes,  522, 
by  note  or  bill  of  a  third  person,  523. 
by  foreclosure  of  mortgage,  524. 
by  legacy,  524. 
by  remittance  by  post,  525. 
by  delivery  of  specific  articles,  526. 
by  any  collateral  thing,  526. 
presumption  of,  from  security  taken  up,  527. 
from  lapse  of  time,  528. 
from  course  of  trade,  528. 
from  habit  of  deahng,  528. 
ascription,  or  appropriation  of  payments,  529  -  536. 
by  the  debtor,  529,  530. 
by  the  creditor,  531. 
when  to  be  made,  532. 
when  it  may  be  changed,  532  a. 
by  law,  533. 

where  there  is  a  surety,  534. 
where  one  debt  is  barred  by  lapse  of  time,  535. 
where  one  security  is  void,  535. 
when  ratably  made,  536. 
PAYMENT  INTO  COURT, 

when  and  how  far  conclusive,  I.  205. 
PEDIGREE, 

what  is  included  in  this  term,  I.  104. 
proof  of,  103-105. 

(See  Hearsay.) 


492  INDEX. 

PERAJMBULATIONS, 

when  admissible  in  evidence,  I.  146. 
PERJURY, 

what  amount  of  evidence  necessary  to  establish,  I.  257-260. 

what,  III.  188. 

indictment  for,  189. 

in  what  proceeding,  190. 

fact  of  prisoner's  testifying,  191. 

proof  of  the  oath  taken,  192. 

of  the  testimony  given,  193,  194. 
of  its  materiality,  195,  196,  197. 
of  its  falsehood  and  wilfulness,  198,  199,  200. 
defence,  201. 

competency  of  prosecutor  as  a  witness,  202. 
PERSONALTY, 

what  is,  thougji  annexed  to  land,  I.  271. 
PHYSICIANS, 

generally  bound  to  disclose  confidential  communications,  I.  248. 
(See  Privileged  Communications.) 
PLACE, 

when  material  or  not,  IL  61,  62,  63,  65,  IIL  12,  112,  143. 
PLAINTIFF, 

when  admissible  as  a  witness,  I.  348,  349,  361,  558. 
(See  Witnesses.) 
PLEAS   AND   PLEADINGS,     {^^e  Allegations.) 
POLYGAIklY, 

in  what  it  consists,  IIL  203. 
indictment  for,  204. 
proof  of  first  marriage,  204. 
second  marriage,  205. 
of  first  partner's  life,  207. 
second  partner,  when  a  competent  witness,  206. 
defence,  208. 
POSSESSION, 

character  of,  when  provable  by  declarations  of  possessor,  I.  106. 

(See  Hearsay.) 
when  evidence  of  property,  34. 
of  guilt,  34. 

(See  Guilty  Possession.     Presiimption.) 
whether  necessary  to  be  proved  under  an  ancient  deed,  21,  144 
POST-OFFICE, 
books,  I.  484. 

(See  Public  Records  and  Documents.) 


INDEX.  493 

POST-MARKS,  I.  40. 
PRESCRIPTION, 

what,  I.  17,  II.  537,  538. 
variance  in  the  proof  of,  I.  71,  72. 
must  be  precisely  proved,  56,  58. 
lost  grant  when  presumed,  II.  538,  539. 

how  proved,  546. 
kinds  of,  540. 

what  may  not  be  claimed  by,  541. 
plea  of,  how  maintained,  543. 
customary  right,  what,  542. 
plea  of,  what  proof  will  support  it,  544,  545. 

or  defeat  it,  544,  545.  ^ 

(See  Custom.) 
PRESENCE, 

constructive,  what  constitutes,  III.  41,  243. 
PRESIDENT    OF    THE    UNITED    STATES.       (See    Executive. 

Privileged  Communications.     Witnesses.) 
PRESUMPTIONS, 

of  law,  conclusive,  on  what  founded,  I.  14,  15. 
conclusive,  how  declared,  16,  17. 
from  prescription,  17. 
from  adverse  enjoyment,  16. 
from  use  of  deadly  weapons,  18,  III.  14,  147. 
in  favor  of  judicial  proceedings.  I.  19,  227. 
consideration  of  bond,  19. 
formality  of  sales  by  executors,  &c.  20. 

but  not  of  matters  of  record,  &c.  20. 
ancient  documents,  21,  143,  144,  570. 
genuineness  and  integrity  of  deeds,  144,  564. 
authority  of  agent,  21. 
as  to  estoppels  by  deed,  22  -  24. 
by  admissions,  27. 
by  conduct,  27. 
omnia  rite  acta,  20  a. 
as  to  capacity  and  discretion,  28,  867. 
legitimacy,  28. 

coercion  of  wife  by  husband,  28,  lU.  7. 
survivorship,  I.  29,  30. 
neutrality  of  ship,  31. 
performance  of  duty,  227. 
from  spoliation  of  papers,  31,  III.  408,  458. 
principle  and  extent  of  conclusive  presumptions  of  law,  I.  31,  32. 


494  INDEX. 

PRE  SUMPTIONS  —  Contimied. 

disputable,  nature  and  principles  of,  I.  33. 
of  innocence,  34,  35. 

except  in  case  of  libel,  and  when,  36,  III.  168. 
of  malice,  I.  34,  III.  14,  145  -  147. 
of  lawfulness  of  acts,  I.  54. 
from  possession,  34. 

guilty  possession,  34,  III.  31  —  33,  57. 
destruction  of  evidence,  I.  37,  III.  408,  458. 
fabrication  of  evidence,  I.  37. 
usual  course  of  business,  38,  40. 
non-payment  twenty  years,  39. 
of  continuance,  41. 

of  life,  not  after  seven  years  of  absence,  &c.  41. 
of  continuance  of  partnership,  once  proved,  42. 
of  continuance  of  opinions  and  state  of  mind,  42,  370. 
of  capacity  and  discretion  in  children,  367. 

in  persons  deaf  and  dumb,  366. 
of  religious  belief  in  witnesses,  370. 
of  international  comity,  43. 
of  amount  and  quantity,  II.  129  a. 
of  possession  of  letters  testamentary,  364. 
of  payment,  32,  33,  527,  528. 
of  knowledge  of  the  contents  of  a  will,  675,  n. 
of  alteration  of  will  by  testator,  681. 
of  time  when  alteration  made,  681,  n. 
of  sanity,  689. 
of  innocence.  III.  29,  30. 
of  fraud,  254. 
of  fact,  nature  of,  I.  44. 

belong  to  the  province  of  the  jury,  44. 
when  juries  advised  as  to,  by  the  court,  45  -  48. 
PRINCIPAL    AND    AGENT.     {See  Agency.) 
PRINCIPAL    DEBTOR, 

when  his  admissions  bind  the  surety,  I.  187. 
PRINCIPAL    FELON, 

accessory  not  a  competent  witness  for,  I.  407. 
PRINCIPALS, 

who  are  such.  III.  40,  41. 
in  the  first  degree,  40. 
second  degree,  40. 
must  be  tried  before  accessory,  46. 


INDEX.  495 

PRISON  BOOKS, 

when  and  for  what  purposes  admissible,  I.  493. 

(See  Public  Records  and  Documents.) 
PRISONER  OF  WAR, 

mode  of  procuring  attendance  of,  as  a  witness,  I.  312. 
PRIVATE   WRITINGS, 

contemporaneous,  admissible  to  explain  each  other,  I.  283. 
proof  of,  when  lost,  557,  558. 

diligent  search  required,  558. 
production  and  inspection  of,  how  obtained,  559. 
notice  to  produce,  560. 

when  not  necessary,  561. 

how  directed  and  served,  561,  562. 

when  to  be  called  for,  563. 

production  of,  in  equity,  III.  295  -  805. 

(See  Documentary  Evidence^ 
alteration  in,  when  to  be  explained,  I.  564. 
when  presumed  innocent,  564. 
to  be  tried  ultimately  by  the  jury,  564. 
a  deed,  renders  it  void,  565. 
reasons  of  this  rule,  565. 
alteration  and  spoliation,  difference  between,  566. 
by  insertion  of  words  supplied  by  law,  567. 
made  by  the  party,  immaterial  and  without  fraud,  does  not  avoid, 

568. 
made  by  party,  with  fraud,  avoids,  568. 
but  does  not  devest  estate,  568. 
defeats  estate  lying  in  grant,  568. 
destroys  future  remedies,  568. 
made  between  two  parties  to  an  indenture,  but  not  affecting  the 
others,  568. 
proof  of,  must  be  by  subscribing  witnesses,  if  any,  272,  569.    • 
exceptions  to  this  rule  :  — 

1.  deeds  over  thirty  years  old,  570. 

2.  deeds  produced  by  adverse  party  claiming  under  it,  571. 

3.  witnesses  not  to  be  had,  572. 

4.  office  bonds,  573. 
subscribing  witness,  who  i^,  569. 
diligent  search  for  witnesses  required,  574. 
secondary  proof,  when  witness  not  to  be  had,  84,  m.,  575. 
handwriting,  how  proved,  272,  576. 

personal  knowledge  of,  required,  677. 
exceptions  to  this  rule,  272,  578. 


496  INDEX. 

PRIVATE    WniTm GS  — Continued. 

comparison  of  handwriting,  by  what  other  papers,  I.  579  -  582. 
PRIVIES, 

who  are  privies,  I.  23,  189,  190,  211. 
PRIVILEGE   OF   WITNESS, 

from  arrest,  I.  316. 

from  answering,  451  -460. 
PRIVILEGED    COMMUNICATIONS, 

1.  made  to  legal  counsel  —  principle  of  exclusion,  I.  237. 
who  are  included  in  the  rule,  as  counsel,  239,  241. 
nature  of  the  communication,  240. 

extends  to  papers  intrusted  with  counsel,  240. 
not  to  transactions  in  which  the  counsel  was  also  party,  242. 
protection  remains  forever,  unless  waived  by  the  party,  243. 
limitations  of  the  rule,  244,  245. 

when  title-deeds  and  papers,  of  one  not  a  party,  may  be  called  out 
of  the  hands  of  this  agent,  246. 

2.  made  to  clergymen,  how  far  privileged,  229,  247. 

3.  made  to  medical  persons  and  other  confidential  friends  and  agents, 

not  privileged,  248. 

4.  arbitrators,  not  bound  to  disclose  grounds  of  award,  249. 

5.  secrets  of  state,  250,  251. 

6.  proceedings  of  grand-jurors,  252. 

7.  between  husband  and  wife,  254,  334. 

8.  in  prosecutions  for  libel.  III.  168,  n. 

9.  in  civil  actions  for  libel,  II.  421. 
PRIZE, 

foreign  sentence  of  condemnation  as,  I.  541. 
PRIZE    COURTS,  in.  387. 

(See  Admiralty,  &c.) 
PROBATE   COURTS, 

decrees  of,  when  conclusive,  I.  518,  560. 
PROBATE   OF   WILLS, 

mode  of  proof  of,  II.  339,  343,  n. 

effect  of,  672. 
PROCHEIN  AMY, 

admissions  by,  I.  179. 

inadmissible  as  a  witness,  347,  391. 
PROCLAMATIONS, 

proof  of,  I.  479. 

evidence  of,  what,  491. 
PRODUCTION  OF   WRITINGS, 

private,  how  obtained,  I.  559-563- 

(See  Private  Writings.     Equity.) 


INDEX.  497 

PROMISSORY  NOTE, 

parties  to,  when  competent  to  impeach  it,  I.  383  -  385. 
(See  Witnesses.     Bills  of  Exchange.) 
PROOF, 

defined,  I.  1. 
full  proof,  III.  409. 
half  proof,  409. 
PROPERTY, 

when  presumed  from  possession,  I.  34. 
PROSECUTOR, 

when  competent  as  a  witness,  I.  362. 

(See  Courts-Martial.) 
PUBLIC  BOOKS, 

contents  provable  by  copy,  I.  91. 

(See  Public  Records  and  Documents.) 
PUBLIC   AND    GENERAL  INTEREST.     {Sqq  Hearsay.) 
PUBLICATION, 

of  libel  by  agent,  when  principal  liable  for,  1.  36,  234,  III.  170. 
of  will,  what  and  when  necessary,  11.  675. 
PUBLIC  RECORDS  AND   DOCUMENTS, 

inspection  of  records  of  superior  courts,  I.  471,  472. 
of  inferior  courts,  473. 
of  corporation  books,  474. 
of  books- of  public  offices,  475,  476. 
when  an  action  is  pending,  477. 
when  not,  478. 
proof  of  public  documents  not  judicial,  479  -  491. 
by  copy,  91,  479-484. 
acts  of  State,  479. 
statutes,  480,  481. 
legislative  journals,  482. 
official  registers,  &c.  483,  484. 

character  of  these  books,  485,  496. 
proper  repository,  142,  485. 
who  may  give  copies,  485. 
foreign  laws,  486,  487,  488,  488  a. 
laws  of  sister  States,  489,  490. 

judicially  noticed  by  Federal  courts,  490. 
admissibility  and  eifect  of  these  documents,  491  -  498. 
proclamations,  491. 
recitals  in  public  statutes,  491. 
legislative  resolutions,  491. 
journals,  491. 
VOL.  III.  32 


498  INDEX. 

PUBLIC  RECORDS  AND   DOCUMENTS— Cow^mMetf. 
diplomatic  correspondence,  I.  491. 
foreign  declarations  of  war,  491. 
letters  of  public  agent  abroad,  491. 
colonial  governor,  491. 
government  gazette,  492. 
official  registers,  493. 

parish  registers,  493. 
admissibility  and  effect  of  official  registers, 

navy  office  registers,  493. 

prison  calendars,  493. 

assessment-books,  493. 

municipal  corporation  books,  493. 

private  corporation  books,  493. 

registry  of  vessels,  494. 

log-book,  495,  III.  428  -  430. 

what  is  an  official  register,  I.  484,  495,  496. 

public  histories,  how  far  admitted,  497. 

official  certificates,  498. 
PUNISHMENT, 

endurance  of,  whether  it  restores  competency,  I.  378,  n. 


Q. 

QUAKERS, 

judicial  affirmation  by,  I.  371. 
QUALIFICATION, 

by  degree,  when  proof  of  dispensed  with,  I.  195,  n. 

by  license,  must  be  shown  by  party  licensed,  78,  79. 
QUANTITY  AND    QUALITY, 

whether  material,  I.  61. 
QUO    WARRANTO, 

judgment  of  ouster  in,  conclusive  against  sub-officers,  under  the  ousted 
incumbent,  I.  536. 

R. 

RAPE, 

wife  competent  to  prove,  I.  343. 

what,  III.  209. 

carnal  knowledge,  210. 

force,  211. 

without  consent,  211. 

defence,  212. 


INDEX. 

RAPE  —  Continued. 

credibility  of  prosecutrix,  III.  212,  213. 
impeachment  of  her,  212  -  214. 
impuberty  of  prisoner,  215. 
RATED   INHABITANTS, 

(See  Inhabitants) 
admissions  by,  I.  175,  331. 
REAL  ACTIONS, 

various  forms  of,  in  the  United  States,  II.  547. 

of  remedies  for  mesne  profits,  548. 
remedies  for  betterments,  549-551. 
writ  of  right,  evidence  in,  554. 
seisin  of  plaintiff,  proof  of,  555. 
plea  of  «mZ  disseisin,  evidence  under,  556. 
disseisin,  how  proved,  557. 

how  rebutted,  558. 
lasting  improvements  or  betterments,  what,  559. 
(See  Ejectment.) 
REALTY, 

what  is,  I.  271. 
REASONABLE   DOUBT, 

what,  in.  29. 
RECEIPT, 

effect  of,  as  an  admission,  I.  212. 
when  it  may  be  contradicted  by  parol,  305. 
of  part  payment,  by  indorsement  on  the  security,  121,  122. 
when  admissible  as  evidence  of  payment,  147,  n. 
RECITALS, 

in  deeds,  when  conclusive,  I.  24,  25,  26,  211. 
when  evidence  of  pedigree,  104. 
RECOGNIZANCE.     (See  Witnesses.) 
RECORDS, 

variance  in  the  proof  of,  when  pleaded,  I.  70. 
public,  provable  by  copy,  91. 
inspection  of,  471  -  478. 

(See  Records  and  Judicial  Writings.) 
RECORDS  AND  JUDICIAL  WRITINGS, 
proofof,  L501-521. 

by  copies,  three  kinds  of,  501. 
by  exemplification,  and  what,  501. 
by  production  of  the  record,  502. 

when  obtained  by  certiorari,  502. 
by  copy  under  seal,  503. 


499 


500  INDEX. 

RECORDS  AND   JUDICIAL   W RlTmGS  — Continued. 

proof  of  records  of  sister  States  of  the  United  States,  I.  504-506, 
proof  of  records  by  office  copy,  507. 
by  examined  copy,  508. 
when  lost,  509. 
proof  of  verdicts,  510. 

decrees  in  chancery,  510,  511. 
proof  of  answers  in  chancery,  512. 

judgments  of  inferior  courts,  513. 
foreign  judgments,  514. 
foreign  documents,  514  a. 

inquisitions  post  mortem,  and  other  private  offices,  515. 
depositions  in  chancery,  516. 
depositions  taken  under  commission,  517. 
wills  and  testaments,  518. 
letters  of  administration,  519. 
examination  of  prisoners,  520. 
writs,  521. 
admissibility  and  effect  of  these  records,  522-556. 
general  principles,  522. 

who  are  parties,  privies,  and  strangers,  523,  536. 
mutuality  required,  in  order  to  bind,  524. 
except  cases  in  rem,  525. 
cases  of  custom,  &c.,  526. 

when  offered  for  collateral  purposes,  527,  527  a. 
or  as  solemn  admissions,  527  a. 
conclusive  only  as  to  matters  directly  in  issue,  528,  534. 
general  rule  as  stated  by  Lord  C.  J.  De  Grey,  528. 
applies  only  where  the  point  was  determined,  529. 

to  decisions  upon  the  merits,  530. 
whether  conclusive  when  given  in  evidence,  531,  531  a. 
to  be  conclusive,  must  relate  to  the  same  property  or  transaction, 

532. 
effect  of  former  recovery  in  tort,  without  satisfaction,  533. 
sufficient,  if  the  point  was  essential  to  the  former  finding,  534. 
judgment  in  criminal  case,  why  not  admissible  in  a  civil  action, 

537. 
judgment,  for  what  purposes  always  admissible,  538,  539. 
foreign  judgments,  jurisdiction  of  court  to  be  shown,  540. 
in  rem,  conclusive,  540,  542. 
how  far  conclusive  as  to  incidental  matters,  443. 
as  to  personal  status,  marriage,  and  divorce,  544.  545. 
executors  and  administrators,  544. 


INDEX.  501 

RECORDS   AND  JUDICIAL   WRITmGS  —  Coiitinued. 

decisions  of  highest  judicial  tribunal  of  foreign  country  con- 
clusive, I.  546  b. 
judgment  of  foreign  court   conclusive   ititer  partes   when, 

546  d. 
foreign  decrees  operating  in  rem,  546  e. 
effect  of  defendant  becoming  party  to  proceedings,  546/ 
requisites  to  a  plea  of  foreign  judgment  in  bar,  546  g. 
foreign  judgments  in  personam,  their  effect,  546  -  549. 
judgments  of  sister  States  of  tlie  United  States,  548. 
citizenship  not  material,  in  effect  of  foreign  judgments,  549. 
admissibility  and  effect  — 

of  decrees  of  courts  of  Probate  or  Ecclesiastical  courts,  550. 
of  chancery  decrees,  551. 
answers,  551. 
demurrers,  551. 
pleas,  551. 

(See  Equity.) 
of  depositions,  552, 
of  foreign  depositions,  552. 

of  verdicts  and  depositions,  to  prove  matters  of  reputation,  555. 
of  inquisitions,  556. 
of  mutuality,  as  to  depositions,  553. 
whether  cross-examination  is  essential  to  their  admissibility,  653,  554. 
RECOUPMENT, 

when  allowed,  II.  136. 
RE-EXAMINATION, 

of  witnesses,  I.  467,  468. 

(See  Equity.     Witnesses.) 
REGISTER, 

official,  nature  and  proof  of,  I.  483,  484,  485,  493,  496,  497. 

parish,  493. 

bishop's,  474,  484. 

ship's,  494. 

foreign  chapel,  493,  n. 

fleet,  493,  n. 

(See  Public  Records  and  Documents.) 
REGISTRY, 

proper  custody,  when,  I.  142,  485. 
RELEASE, 

competency  of  witness  restored  by,  when,  I.  426,  430. 
by  seaman,  not  an  estoppel.  III.  437. 

(See  Witnesses.) 


502  INDEX. 

EELATIONSHIP, 

of  declarant,  necessary  in  proof  of  pedigree,  when,  I.   103,  104, 
134. 
RELIGIOUS   PRINCIPLE   AND  BELIEF, 

what  necessary  to  competency  of  witness,  I.  368-372. 
(See  Witnesses.) 
RENT, 

presumption  from  payment  of,  I.  38. 
REPLEVIN, 

surety  in,  how  rendered  competent,  I.  392,  n. 

when  it  lies,  II.  560. 

what  title  plaintiff  must  prove,  561. 

plea  of  won  cepit,  evidence  under,  562. 

property  in  defendant,  563. 
avowry  or  cognizance,  564. 

pleas  of  non  demisit  and  non  tenuit,  proof  under,  565. 
nil  hahuit  in  tenementis,  564. 
riens  in  arrear,  566. 
cognizance  as  bailiff,  567. 
avowry  for  damage  feasant,  568. 
tender,  569. 
competency  of  witnesses,  570. 
REPUTATION, 

of  witnesses,  I.  101,  461. 

(See  Hearsay.     Witnesses.) 
evidence  of,  when  proved  by  verdict,  139. 
RES   GEST^, 

what,  L  108,  109,  111,  114. 

(See  Hearsay.) 
RESIGNATION, 

of  corporator  restores  competency,  I.  430. 
RESOLUTIONS, 

legislative,  I.  479. 

at  public  meetings  may  be  proved  by  parol,  90. 
REVOCATION, 

of  authority  or  agency,  II.  68  a. 
of  submission,  79. 
of  will,  680  -  687. 
REWARD, 

title  to,  does  not  render  incompetent,  I.  412,  414. 
RIOTS,  ROUTS,  AND  UNLAWFUL  ASSEMBLIES, 
definition  of,  III.  216. 
proof  of  a  riot,  217. 


INDEX.  503 


RIOTS,   ROUTS,   Sea.  — Continued. 
number  of  persons,  III.  217. 
unlawfully  assembled,  218. 
acts  of  violence,  219. 

terror,  219. 
character  of  the  object,  220. 
order  of  proofs,  221. 
proof  of  rout,  222. 
proof  of  unlawful  assembly,  222. 
ROBBERY, 

definition  of,  III.  223. 
indictment  for,  223. 
proof  of  property,  224. 
value,  224. 
taking,  225,  226. 
felonious  intent,  227. 
taking  from  the  person,  228. 
force,  229,  230. 
putting  in  fear,  231. 
danger  to  person,  232. 
to  property,  233. 
to  reputation,  234. 
immediate,  235. 
dying  declarations  of  party  robbed,  inadmissible,  237. 


S. 
SALE, 

when  to  be  proved  only  by  writing,  I.  261,  267. 
(See  Writing.) 
SANITY, 

whether  letters  to  the  party  admissible  to  prove,  I.  101,  n. 
opinions  of  physicians  admissible  as  to,  440. 
(See  Insanity.) 
SCRIVENER, 

communications  to,  whether  privileged,  I.  244. 
SEALS, 

of  foreign  nations,  judicially  noticed,  I.  4. 

of  admiralty  courts,  5. 

of  courts,  when  judicially  noticed,  4,  5,  6,  503. 

of  corporations,  whether  to  be  proved,  after  thirty  years,  570. 

(See  Public  Records   and  Documents.     Records   and  Judicial 
Writings.) 


504  INDEX. 

SEARCH, 

for  private  writings  lost,  I.  558. 
for  subscribing  witnesses,  574. 

(See  Private  Writings.') 
SECONDARY  EVIDENCE, 
whether  degrees  in,  I.  84,  n. 
when  admissible,  84,  509,  560,  575. 
SECRETARY   OF   STATE, 

when  his  certificate  admissible,  I.  479. 
SECRETS   OF   STATE, 

privileged,  I.  250  -  252. 
SEDUCTION, 

action  for,  what  plaintiff  must  prove,  II.  571  -  577. 

declaration  in,  571,  n. 
proof  of  relation  of  servant,  572. 
hiring  not  necessary,  573. 
what  acts  of  service  sufficient,  573. 
when  absence  from  plaintiff's  house  is  not  a  bar,  573. 

is  a  bar,  574. 
service  must  have  existed  at  time  of  seduction,  575. 
when  service  will  be  presumed,  576. 

will  not  be  presumed,  576. 
fact  of  seduction,  577. 
damages,  577  a. 
general  issue,  evidence  under,  578. 
damages,  grounds  and  proof  of,  579. 

(See  Adultery^ 
SENTENCE, 

of  foreign  courts,  when  conclusive,  I.  543  -  547. 

(See  Records  and  Judicial  Writings^ 
SERVANT, 

when  competent  as  a  witness  for  master,  I.  416. 

(See  Master  and  Servant.      Witnesses.) 
SERVICE, 

of  notice  to  quit,  proved  by  entry  by  deceased  attorney,  I.  116. 
to  produce  papers,  561. 
SHERIFF, 

admissions  of  deputy,  evidence  against,  I.  180. 
of  indemnifying  creditor  admissible,  180. 
is  identified  with  his  under  oflJcers,  11.  580. 
action  against,  581. 

for  misconduct  of  deputy,  582. 

official  character  of  deputy  when  and  how  proved,  582. 


INDEX.  505 

SHERIFF  —  Continued. 

declarations  of  deputy,  when  admissible,  II.  583. 
declarations  of  creditor,  when  admissible,  583. 
for  not  serving  process,  plaintiflfs  proofs  in,  584. 

defences  in,  585. 
for  taking  insufficient  pledges,  plaintifTs  proofs  in,  586. 
defences  in,  586. 
action    against,    for   not    paying   over   money,   plaintiff's   proofs   in, 
587. 

defences  in,  588. 
his  return,  when  evidence  for  him,  585. 
for  an  escape,  plaintiff's  proofs  in,  589,  590. 

defences  in,  591. 
for  false  return,  plaintiff's  proofs  in,  592. 
defences  in,  593. 
how  rebutted,  594. 
for  refusing  bail,  595. 
for  extortion,  596. 
for  taking  goods  of  plaintiff,  597. 
competency  of  witnesses  in  these  actions,  598. 
damages,  599. 
SHIPS, 

grand  biU  of  sale  requisite  on  sale  of,  I.  261. 
(See  Admiralty,  &c.) 
SHOP    BOOKS, 

when  and  how  far  admissible  in  evidence,  I.  117  -  119. 
SIGNATURE, 

proofof,  II.  71,  164,  165. 
by  initials,  when  good,  158,  n. 
of  wills,  674. 
SLANDER, 

who  is  to  begin,  in  action  of,  I.  76. 

(See  Libel  and  Slander.) 
SOLICITOR.     (See  Attorney.     Privileged  Communications.) 
SPIES.     (See  Accomplices.) 
SPOLIATION, 

of  papers,  fraudulent,  effect  of,  I.  31. 
in  equity.  III.  359. 
in  admiralty,  408,  453. 
STAMP,  I.  436. 

(See  Memorandum.) 
STATUTE  OF   FRAUDS,  L  262-274. 

(See  -Equity.      Writing.) 


506  INDEX. 

STATUTES, 

public,  proof  of,  I.  480. 

of  sister  States,  489,  491. 
private,  480. 

(See  Public  Records  and  Documents.) 
STEAMERS, 

how  regarded  in  Admiralty,  III.  408,  n. 
rules  for  their  government,  408,  n. 
STEWARD, 

entries  by,  I.  147,  155. 

(See  Hearsay.) 
STOCK, 

transfer  of,  proved  by  bank  books,  I.  484. 

(See  Corporations.     Public  Records  and  Documents.) 
SUBMISSION   AND    CONSENT, 

difference  between,  III.  59,  n. 
SVBPCENA, 

to  procure  attendance  of  witness,  I.  309. 
(See  Witnesses.) 
SUBSTANCE   OF   ISSUE, 
proof  of,  sufficient,  I.  56-73. 
what,  in  libels  and  written  instruments,  58. 
in  prescriptions,  58,  71. 
in  allegations  modo  et  forma,  59. 
in  allegations  under  a  videlicet,  60. 
of  time,  place,  &c.,  61,  62. 
variance  in  proof  of,  63,  04. 
what,  in  criminal  prosecutions,  65. 
in  actions  on  contract,  66. 
in  case  of  deeds,  69. 
records,  70. 

(See  Description.) 
SUBSCRIBING    WITNESS.     (See  Attesting  Witness.    Private  Writ- 
ings.) 
SUMMARY, 

legal  meaning  of  the  word.  III.  401. 
SUNDAY, 

contracts  made  on,  void,  II.  199,  n. 
SURETY, 

how  rendered  a  competent  witness  for  principal,  I.  430. 
(See    Witnesses.) 
SURGEON, 

confidential  communications  to,  not  privileged,  I.  247,  248. 


INDEX.  507 

SURPLUSAGE, 

what,  I.  51. 
SURRENDER, 

when  writing  necessary,  I.  265. 
SURVIVORSHIP, 

not  presumed,  when  both  perish  in  the  same  calamity,  I.  29,  30. 
SUSPICION, 

when  it  may  be  shown  in  mitigation  of  damages,  II.  272,  458. 


T. 

TELEGRAPH, 

libel  by,  IIL  179,  n. 
TENANT, 

estopped  to  deny  title  of  landlord,  when,  I.  25. 
TENDER, 

natm-e  and  effect  of,  11.  600. 

of  money,  plea  of,  how  proved,  601. 
in  bank-notes  or  checks,  601. 

production  of  the  money  necessary,  602. 
when  dispensed  with,  603. 

of  a  greater  sum,  when  good,  604. 

must  be  absolute,  605. 

may  be  under  protest,  605,  n. 

when  there  are  several  debts,  605. 
several  creditors,  605. 

to  whom  to  be  made,  606. 

at  what  time  to  be  made,  607. 

avoided  by  subsequent  demand,  608. 

of  specific  articles,  where  to  be  made,  609  -611. 
how  to  be  made,  611  a. 

(See   Payment.) 
TERRIER, 

what,  and  when  admissible,  II.  496. 
TIME, 

when  not  material,  I.  56,  61,  62. 
TOMBSTONE, 

inscription  on,  provable  by  parol,  I.  94,  105. 
TREASON, 

what  amount  of  evidence  necessary  to  prove,  I.  255,  256. 

wife  incompetent  to  prove,  against  husband,  345. 

confession  of  guilt  in,  its  effect,  234,  235. 

in  what  it  consists,  III.  237,  242,  n. 


508 


INDEX. 


TEEASON  —  CouHnved. 

against  tlie  United  States,  III.  237. 

against  a  State,  237. 

misprision  of,  238. 

allegation  of  allegiance  material,  239. 

of  overt  act,  240. 
proof  of  overt  act,  241. 

armed  assemblage,  242. 

presence  of  prisoner,  243. 
proof  of  actual  presence  of  prisoner,  243. 

constructive,  243. 

adhering  to  enemies,  244. 
no  accessories  in,  245. 
number  of  witnes,-es  required,  246. 
proof  of  misprision  of  treason,  247. 

confession  of  prisoner,  248. 
TRESPASS, 

defendant  in,  when  admissible  for  co-defendant,  I.  357,  359. 
gist  of,  and  points  of  plaintiff's  proof,  II.  613. 
(1.)  possession  of  plaintiff,  614. 

constructive,  615. 

by  lessee  or  bailee,  616. 

by  general  owner  or  reversioner,  616. 

of  partition  fences,  617. 

of  line  trees,  617. 

by  wrongdoer,  618. 

by  occupant  or  lodger,  618. 

by  finder  of  goods,  618. 

ratione  soli,  618. 

of  animals,  ^ertc  natures,  620. 
boundaries,  when  necessary  to  be  proved,  618  a. 
right  of  entry  not  sufficient,  619. 
(2.)  injury  by  defendant  with  force,  621. 

wrongful  intent  not  necessary,  622. 

with  force  directly  applied,  623. 
proof  of  time,  when  material,  624. 

proof  of  trespass,  when  it  may  be  waived  and  another  proved,  624. 
general  issue,  evidence  under,  625. 
plea  onibernm  tenementum,  evidence  under,  626. 

license,  627. 

in  law,  628. 
justification  under  process,  629. 

defence  of  property,  630. 


INDEX.  509 

TRESPASS  — Co7itimied. 

right  of  way,  11.  631,  632. 
right  to  dig  gravel,  631. 
replication  de  injuria,  evidence  under,  633. 
new  assignment  in,  634,  635. 
TRIAL, 

when  put  off,  on  account  of  absent  witness,  I.  320. 
when  put  off  for  religious  instruction  of  witness,  367. 
(See  Witnesses.) 
TROVER, 

whether  barred  by  prior  judgment  in  trespass,  I.  533. 

(See  Records  and  Judicial  Writings.) 
proofs  in,  by  plaintiff,  II.  636  -  647. 
(1.)  of  property  in  plaintiff,  637. 
special  nature  of,  637,  n. 
in  goods,  by  sale,  638. 
in  negotiable  securities,  639. 
right  of  present  possession,  640. 
pi'operty  as  executor,  &c.,  641. 
(2.)  conversion  by  defendant,  what  is,  641. 
Hcense,  when  presumed,  643. 

conversion  by  defendant,  when  proved  by  demand  and  refusal, 
644,  645. 
when  not,  645. 
between  tenants  in  common,  evidence  in,  646. 

when  a  sale  by  one  is  a  conversion,  646,  n. 
by  husband  and  wife,  647. 
defences  in  this  action,  648. 
damages  in,  649. 
TRUSTS, 

to  be  proved  by  writing,  I.  266. 
to  be  proved  by  writing,  except  resulting  trusts,  266. 
resulting,  when  they  arise,  266.  * 

TRUSTEE, 

when  competent  as  a  witness,  I.  833,  409. 

U. 

UNCERTAINTY, 

what,  I.  298,  300. 
UNDERTAKING, 

to  release,  its  effect  on  competency,  I.  420. 
UNDERSTANDING, 

not  presumed  in  persons  deaf  and  dumb,  I.  366. 


510  INDEX. 

UNDERWRITER, 

party  to  a  consolidation  rule,  incompetent,  I.  395. 

who  has  paid  loss,  to  be  repaid  on  plaintiff's  success,  incompetent,  392. 

opinions  of,  when  not  admissible,  441. 
UNDUE  INFLUENCE, 

what,  II.  688. 
UNITED  STATES, 

laws  of,  how  proved,  inter  sese,  I.  489,  490. 

judgments  of  courts  of,  548. 

(See  Public  Records  and  Documents.     Records  and  Judicial  Pro- 
ceedings.) 
UNWHOLESOME  FOOD, 

offence  of  selling.  III.  85. 
USAGE, 

admissibility  and  effect  of,  to  affect  written  contracts,  I.  292  -  294. 
(See  Custom  and  Usage.     Parol  Evidence.) 
USE  AND  OCCUPATION, 

defence  to  action  for,  II.  135. 


V. 

VARIANCE, 

nature  of,  L  63,  64-73. 
in  criminal  prosecutions,  65. 

in  the  proof  of  a  contract,  66,  IL  11,  12,  13,  160,  189,  625. 
consideration,  I.  68. 
deeds,  69. 

when  literal  agreement  in  proof  not  necessary,  69. 
in  the  name  of  obligor,  69,  w. 
in  the  proof  of  records,  70. 
prescriptions,  71,  72. 
fatal  consequences  of,  how  avoided,  73. 

(See  Description.     Substance  of  the  Issue.) 
VERDICT, 

inter  alios,  evidence  of  what,  I.  139,  538,  555. 
separate,  allowed,  358,  363. 
how  far  conclusive  in  equity.  III.  261  -266. 
VIDELICET, 

its  nature  and  office,  I.  60. 
when  it  will  avoid  a  variance,  60. 
VOIR  DIRE, 
what,  L  424. 

(See  Witnesses.) 


INDEX.  511 


W. 

WASTE, 

what  is,  and  how  punishable,  11.  650. 
damages  in,  650. 
action  of,  651,  652. 

pleas  in,  653. 
.  action  on  the  case  for,  by  landlord,  654. 

proofs  in,  654. 
must  be  specially  stated  and  proved,  655. 
general  issue  in,  evidence  under,  656. 

by  plaintiff,  656. 

by  defendant,  656. 
WAY, 

(See  Highway.) 
private,  how  it  may  exist,  II.  657. 

by  necessity,  658. 

appurtenant,  659  a. 

how  proved,  659. 

when  lost  by  non-user,  660,  665. 
proofs  by  defendant,  in  action  for  distui'bance  of,  660. 

in  trespass,  661. 
public,  how  proved,  662. 

proved  by  dedication,  662. 
by  whom  made,  663. 
how  rebutted,  664. 

not  lost  by  non-user,  665. 
WIDOW, 

incompetent  to  testify  to  admissions  by  deceased  husband,  I.  387. 

(See  Husband  and  Wife.     Privileged  Communications.) 
WILLS, 

how  to  be  executed,  I.  272, 

revoked,  272. 
cancellation  of,  what,  273. 
admissibility  of  parol  evidence  to  explain,  &c.,  287-291. 

(See  Parol  Evidence.) 
Mr.  Wigram's  rules  of  interpretation,  287,  n. 

general  conclusions,  291,  n. 
proofof,  440,  518. 
effect  of  the  probate  of,  550. 
diversities  in  modes  of  proof  of,  II.  666. 
by  what  law  governed,  668. 

as  to  movables,  668,  669. 


512  INDEX. 

WILLS  —  Continued. 

as  to  immovables,  II.  670. 
by  what  law  interpreted,  671. 
probate,  effect  of,  672. 

when  conclusive,  672. 

mode  of  proof  of,  339,  340,  343,  n. 
signature  of,  by  testator,  what  is  sufficient,  674. 
publication  of,  what  is,  and  when  necessary,  675. 
witnesses  need  not  see  testator  actually  sign,  676. 

how  many  necessary,  677. 

must  sign  in  testator's  presence,  678. 
presence  of  testator,  what  is,  678. 
thirty  years  old,  need  not  be  proved,  679. 
revocation  of,  what  is,  680. 

express,  by  subsequent  will,  681. 
revocation  of,  express,  by  deed  of  revocation,  681. 

by  cancellation,  681. 

by  cancellation  of  duplicate,  682. 

when  avoided  by  destroying  the  instrument  of  revocation, 
683. 

must  be  by  testator  while  of  sound  mind,  681,  n. 

implied,  on  what  principle,  684. 

by  marriage  and  issue,  684,  685. 
by  alteration  of  estate,  686. 
by  void  conveyance,  687. 
revival  of,  688. 
how  avoided,  688. 

obtained  by  undue  influence,  when,  688. 
what  is  undue  influence,  688,  n.  1. 
insanity  of  testator,  burden  of  proving,  689. 

at  time  of  executing  the  will,  690. 

what  is  evidence  of,  690. 

proved  by  admissions,  when,  690. 
declarations  of  devisees  in  disparagement  of,  690. 
attesting  witnesses,  why  required,  691. 

must  be  competent,  691. 

may  testify  as  to  belief,  691. 
proof  of  in  courts  of  common  law,  692,  693. 

when  lost,  688  a. 

under  issue  of  devisavit  vel  non,  693,  694. 
WITNESSES, 

how  many  necessary  to  establish  treason,  I.  255,  256. 

perjury,  257  -  260 


INDEX.  618 

WTT'mESSES  — Continued. 

to  overthrow  an  answer  in  chancery,  I.  260. 
(See  Equity.) 
how  to  procure  attendance  of,  309  -  324. 
by  subpoena,  309. 
subpoena  duces  tecum,  309. 
tender  of  fees,  310,  311. 

not  in  criminal  cases,  811. 
habeas  corpus  ad  testificandum,  312. 
recognizance,  313. 
subpoena  when  served,  314. 
how  served,  ^3 15. 
how  and  when  protected  from  arrest,  316. 
discharged  from  unlawful  arrest,  318. 
neglecting  or  refusing  to  appear,  how  compelled,  319. 
residing  abroad,  deposition  taken  under  letters  rogatory,  320. 
sick,  deposition  taken  by  commission,  when,  320. 
depositions  of,  when  and  how  taken,  321-324. 

in  perpetuam  rei  memoriam,  324,  325. 
competency  of,  327  -  430. 
to  be  sworn.     Oath,  its  nature,  328. 
competency  of  parties,  327,  330. 
attorneys,  364,  386. 
quasi  corporators,  331. 
private  corporators,  332,  333. 
members  of  charitable  corporation,  333. 
husband  and  wife,  384-336. 

time  of  marriage  not  material,  386. 
rule  operates  after  divorce  or  death  of  one,  337. 
exception,  338. 

rule  applies  only  to  legal  marriages,  389. 
how  affected  by  husband's  consent,  340. 
applies  wherever  he  is  interested,  841. 
competent  in  collateral  proceedings,  342. 
exceptions  in  favor  of  wife,  342-345. 
rule  extends  to  cases  of  treason,  semb.,  345. 
dying  declarations,  346. 
parties  nominal,  when  incompetent,  347. 
parties,  when  competent,  348,  558. 
from  necessity,  848  -  350. 
from  public  policy,  350. 
answer  in  chancery  admissible,  351. 
(See  Equity.) 
VOL.  in.  33 


514 


INDEX. 


WITNESSES  —  Continued. 

oath,  given  diverso  intuitu,  admissible,  I.  352. 
parties,  when  competent, 

never  compellable  to  testify,  353. 

one  of  several  not  admissible  for  the  adverse  party,  without  con- 
sent of  all,  354. 
when  admissible  for  the  others  in  general,  355. 
in  actions  ex  contractu,  356. 
in  actions  ex  delicto,  357  -  359. 
made  party  by  mistake,  when  admissible,  359. 
defendant  in  ejectment,  when  admissible,  360. 
in  chancery,  when  examinable,  361. 
in  criminal  cases,  as  to  prosecutor,  I.  362,  III.  202. 

as  to  defendants,  I.  363. 
judge,  when  incompetent,  364. 
juror,  competent,  364,  n. 
as  to  competency  of  persons  deficient  in  understanding,  365-367. 
persons  insane,  365. 

cause  and  permanency  immaterial,  365. 
persons  deaf  and  dumb,  396. 
as  to  competency  of  children,  367. 

persons  deficient  in  religious  principle,  368-371. 
general  doctrine,  368. 
degree  of  faith  required,  369. 
defect  of  faith  never  presumed,  370. 
how  ascertained  and  proved,  370,  n. 
how  sworn,  371. 

infamy  of,  renders  incompetent,  372. 
reason  of  the  rule,  372. 
what  crimes  render  infamous,  373. 
extent  of  the  disability,  374. 
must  be  proved  by  record  of  the  judgment,  375. 
exceptions  to  this  rule  of  incompetency,  374. 
foreign  judgment  of  infamy  goes  only  to  the  credit,  376. 
disability  from  infamy,  removed  by  reversal  of  judgment,  377. 

by  pardon,  377,  378. 
accomplices,  when  admissible,  379. 

their  testimony  needs  corroboration,  380,  381. 
unless  they  were  only  feigned  accomplices,  382. 
party  to  negotiable  instrument,  when  incompetent  to  impeach  it,  383  - 

385. 
interest  in  the  result,  generally  incompetent,  386-430. 
nature  of  the  iaiterest,  dii-ect  and  legal,  &c.,  386. 


INDEX.  615 

WITNESSES  —  Continued. 

real,  I,  387. 

not  honorary  obligation,  388. 

not  in  the  question  alone,  389. 
test  of  the  interest,  390. 
mode  of  proof,  423. 
magnitude  and  degree  of  interest,  391. 
nature  of  interest  illustrated,  392. 
interest  arising  from  liability  over,  393. 

in  what  cases,  394  -  397. 
agent  or  servant,  394,  396. 
co-contractor,  395. 

what  extent  of  liability  sufficient,  396,  397. 
implied  warranty  sufficient,  398. 
balanced  interest  does  not  disqualify,  391,  399,  420. 
parties  to  bills  and  notes,  399. 

probable  effect  of  testimony  does  not  disqualify,  400. 

liability  to  costs  disqualifies,  401,  402. 

title  to  restitution,  when  it  disqualifies,  408. 
interested  in  the  record,  what,  and  when  it  disqualifies,  404,  405. 
in  criminal  cases,  as  accessory,  407. 

conspirator,  &c.,  407. 
nature  of  disqualifying  interest  further  explained  by  cases  to  which 

the  rule  does  not  apply,  408  -  410. 
exceptions  to  the  rule  that  interest  disqualifies,  411  -420. 

1.  witness  entitled  to  reward,  or   other   benefit   on   conviction, 

412-414. 

2.  party  whose  name  is  forged,  414. 

3.  rendered  competent  by  statute,  415. 

4.  admitted  from  public  convenience  and  necessity,  in  case  of 

middle-men,  agents,  &c.,  416. 

confined  to  ordinary  business  transactions,  417. 

5.  interest  subsequently  acquired,  418. 

6.  offering  to  release  his  interest,  419. 

7.  amply  secured  against  Uability  over,  420. 
objection  of  incompetency,  when  to  be  taken,  421,  422. 

how,  if  subsequently  discovered,  421. 

arising  from  witness's  own  examination  may  be  removed  in  same 
manner,  422. 

from  interest,  how  proved,  423,  424. 
objection  of  incompetency,  to  be  determined  by  the  court  alone,  425. 
examination  of,  on  the  voir  dire,  what,  424. 
competency  of,  when  restored  by  a  release,  426. 


516 


INDEX. 


WIT:NESSES— Continued. 

by  whom  given,  I.  427. 
when  not,  428. 

delivery  of  release  to  the  witness  not  necessary,  429. 
when  restored  by  payment  of  money,  408,  430. 
by  striking  off  name,  430. 
by  substitution  of  another  surety,  430. 
by  operation  of  bankrupt  laws,  &c.,  430. 
by  transfer  of  stock,  430. 
by  other  modes,  430. 
by  assignment  of  interest,  408. 
examination  of,  431-469. 

regulated  by  discretion  of  judge,  431. 
may  be  examined  apart,  wlien,  432. . 
direct  and  cross-examinations,  what,  433. 
leading  questions,  what,  434,  434  a. 

when  permitted,  435. 
when  witness  may  refer  to  writings  to  assist  his  memory,  436, 

437. 
when  the  writing  must  have  been  made,  438. 
if  witness  is  blind,  it  may  be  read  to  him,  439. 
must  in  general  depose  only  to  facts  personally  knovra,  440. 
when  opinions  admissible,  440,  440  a. 
when  not,  441. 

witness  not  to  be  impeached  by  party  calling  him,  442. 
exceptions  to  this  rule,  443. 
may  be  contradicted  as  to  a  particular  fact,  443. 
witness  surprising  the  party  calling  him,  444. 
cross-examination,  when,  445. 
value  and  object  of,  446. 
how  long  the  right  continues,  447. 
how  far  as  to  collateral  facts,  448,  449. 
to  collateral  fact,  answer  conclusive,  449. 
as  to  feelings  of  hostility,  450. 

as  to  existing  relations  and  intimacy  with  the  other  party,  450. 
respecting  writings,  463  -  466. 
in  chancery,  554. 

(See  Equity.) 
whether  compollable  to  answer,  451  -  460. 
to  expose  him, 

1.  to  a  criminal  charge,  451. 

2.  when  he  testifies  to  part  of  a  transaction  without  claiming 

his  privilege,  451  a. 


INDEX.  517 

WITNESSES  —  Continued. 

3.  to  pecuniary  loss,  I.  452. 

4.  to  forfeiture  of  estate,  453. 

5.  to  disgrace,  454,  455. 

where  it  only  tends  to  disgrace  him,  456. 
impertinent  questions  on  cross-examination,  456  a. 
where  it  shows  a  previous  conviction,  457. 
to  questions  showing  disgrace,  but  not  affecting  his  credit,  458. 
to  questions  showing  disgrace,  affecting  his  credit,  459. 
when  a  question  may  be  asked  which  the  witness  is  not  bound  to 
answer,  460. 
modes  of  impeaching  credit  of,  461  -  469. 

1.  by  disproving  his  testimony,  461. 

2.  by  general  evidence  of  reputation,  461. 
extent  of  this  inquiry,  461. 

3.  by  proof  of  self-contradiction,  462. 
how  to  be  supported  in  such  ca^e,  469. 

how  to  be  cross-examined  as  to  contents  of  writings,  463  -  466. 
re-examination  of,  467,  468. 

when  evidence  of  general  character  admissible  in  support  of,  469. 
order  of  proof  and  course  of  trial,  469  a. 
deceased,  proof  of  former  testimony,  163-1 67. 

(See  Admiralty,  «&c.      Courts-Martial.     Equity.^ 
WRIT, 

how  proved,  I.  521. 
WRITING, 

when  requisite  as  evidence  of  title,  on  sale  of  ships,  I.  261. 

(See  Admiralty,  &c.     Ships.) 
by  the  statute  of  frauds,  262. 

to  convey  an  interest  in  lands,  263. 
to  make  a  surrender,  265. 
to  prove  a  trust  of  lands,  266. 
a  collateral  promise,  267. 
certain  sales  of  goods,  267. 
suflScient,  if  contract  is  made  out  from  several  writings,  268. 
agent's  authority  need  not  be  in  writing,  269. 

unless  to  make  a  deed,  269. 
the  term  interest  in  land  expounded,  270,  271. 
devise  must  be  in  writing,  272. 
devise,  how  to  be  executed,  272. 
revoked,  273. 
to  bind  an  apprentice,  274. 
in  what  sense  the  words  of  a  written  contract  are  to  be  taken.  274. 


618  INDEX. 

WRITING  —  Continued. 

when  parol  evidence  is  admissible  to  explain,  &c. 
(See  Equity.     Parol  Evidence.) 
public, 

(See  Public  Documents.     Records  and  Judicial  Writings.) 
written  evidence,  different  kinds  of,  I.  470. 
private, 

(See  Private  Writings.) 
WRITTEN  INSTRUMENTS,  ^ 
production  of,  II.  11. 
variance  in  proof  of,  11. 
date  of,  when  material,  12,  13. 
how  to  be  pleaded,  14,  15. 
proof  of,  when  it  may  be  called  for,  16. 
loss  of,  how  proved,  17.  * 

YEAR  AND  DAT,  III.  120. 


END  OF  VOL.  m. 


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